TITLE 9
MORTGAGES AND
LIENS
Chapter 86. Mortgages; Trust Deeds
86A. Mortgage Lending
87. Statutory Liens
88. Foreclosure of Mortgages and Other Liens
_______________
Chapter 86 — Mortgages;
Trust Deeds
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
New sections of law were added by
legislative action to this ORS chapter or to a series within this ORS chapter
by the Legislative Assembly during its 2012 regular session. See sections in
the following 2012 Oregon Laws chapters: 2012
Session Laws 0112
2011 EDITION
MORTGAGES; TRUST DEEDS
MORTGAGES AND LIENS
REAL PROPERTY MORTGAGES
86.010 Nature
of mortgagee’s interest
86.020 Covenant
to pay money not implied
86.030 Absolute
deed as a mortgage
86.040 Improvements
on mortgaged lands
86.050 Payment
of taxes and other charges by mortgagee
86.060 Assignment
of mortgage
86.080 Record
of assignment not notice to mortgagor
86.095 Acts
not affecting priority of lien of credit instrument
86.100 Discharge
of mortgage
86.110 Discharge
of record by owner and holder of mortgage note who is not the mortgagee of
record
86.120 Discharge
of mortgage on real property; effect of discharge
86.130 Discharge
by foreign executors, administrators, conservators and guardians
86.140 Liability
of mortgagee for failure to discharge mortgage
86.150 Loan
agreements and promissory notes to state maximum prepayment privilege penalty
86.155 Priority
of line of credit instrument as to certain advances; procedure to limit
indebtedness in residential line of credit instrument
86.157 Action
for residual debt after short sale of residential property
LATE CHARGES
86.160 Definitions
for ORS 86.160 to 86.185
86.165 Late
charge
86.170 Prohibited
mortgage provisions
86.175 Scope
86.180 ORS
86.160 to 86.185 not applicable to certain mortgagees; notice to borrowers
86.185 ORS
86.160 to 86.185 not applicable to certain loans
REAL ESTATE LOANS; SECURITY PROTECTION
86.205 Definitions
for ORS 86.205 to 86.275
86.210 Types
of lender security protection provisions allowed
86.214 Application
of ORS 86.210 and 86.245 to real estate loan agreements
86.240 Limit
on amount required in security protection escrow account; compliance with
federal laws for certain loans as compliance with state laws
86.245 Interest
on security protection deposits; exception
86.250 Service
charge prohibited where interest required
86.255 Arrangements
where security protection provisions not required; information to borrower
86.260 Payment
of taxes where security protection provision required; credit of discount where
taxes not paid; cause of action by borrower
86.265 Effect
of lender violation of ORS 86.205 to 86.275
86.270 ORS
86.205 to 86.275 inapplicable to certain loan agreements; notice to borrower
86.275 Severability
CHATTEL MORTGAGES
86.405 Secretary
of State to furnish statement of mortgages filed before September 1, 1963; fee
86.440 Discharge
of mortgage recorded with county recording officer
86.460 Discharge
of mortgage filed with Secretary of State; fee
86.470 Discharge,
assignment and foreclosure of mortgages on chattels registered and licensed by
Department of Transportation
INVESTMENTS; FEDERAL HOUSING
ADMINISTRATOR
86.610 Power
of financial institutions, fiduciaries and others to make loans secured by
property insured by Federal Housing Administrator
86.620 Investment
of funds of financial institutions, fiduciaries and others in bonds and
mortgages accepted by Federal Housing Administrator, debentures issued thereby,
and obligations of national mortgage associations
86.630 Eligibility
of securities described in ORS 86.620 as security for deposits, investment or
reserve of securities
86.640 Applicability
of other laws requiring security or regulating loans and investments
TRUST DEEDS
86.705 Definitions
for ORS 86.705 to 86.795
86.710 Trust
deeds authorized to secure performance of an obligation; methods of foreclosure
after breach
86.715 Trust
deed deemed to be mortgage on real property; applicability of mortgage laws
86.720 Reconveyance
upon performance; liability for failure to reconvey; release of trust deed
86.722 Correction
of error concerning status or effect of trust deed; rights of bona fide
purchaser
86.725 Time
within which foreclosure must be commenced
86.735 Foreclosure
by advertisement and sale
86.737 Notice
to grantor; requirements; additional forms; rules
86.739 Failure
to give notice to grantor; remedy
86.740 Notice
of sale to be given to certain persons
86.742 Failure
to give notice of sale; action by omitted person; defense; pleading and proving
knowledge of sale; attorney fees; exclusive remedy
86.745 Contents
of notice of sale; additional notices; contents and requirements
86.750 Service
and publication of notice; recording proof of compliance
86.753 Discontinuance
of foreclosure proceedings after cure of default
86.755 Sale
of property; obtaining possession after sale; procedures; notices required
86.757 Request
for information from trustee
86.759 Information
provided by trustee
86.765 Disposition
of proceeds of sale
86.770 Effect
of sale; actions for deficiency; restrictions
86.775 Contents
of trustee’s deed to purchaser
86.780 Recitals
in trustee’s deed and certain affidavits as prima facie or conclusive evidence
86.785 Requests
for copies of notice of default or notice of sale
86.790 Qualifications
of trustee; appointment of successor trustee; duty of trustee
86.795 Compensation
of trustee
PENALTIES
86.990 Penalties
REAL PROPERTY MORTGAGES
86.010 Nature of mortgagee’s interest.
A mortgage of real property is not a conveyance so as to enable the owner of
the mortgage to recover possession of the property without a foreclosure and
sale. This section is not intended as a limitation upon the right of the owner
of real property to mortgage or pledge the rents and profits thereof, nor as
prohibiting the mortgagee or pledgee of such rents and profits, or any trustee
under a mortgage or trust deed from entering into possession of any real
property, other than farmlands or the homestead of the mortgagor or successor
in interest, for the purpose of operating the same and collecting the rents and
profits thereof for application in accordance with the provisions of the
mortgage or trust deed or other instrument creating the lien, nor as any
limitation upon the power of a court of equity to appoint a receiver to take
charge of the property and collect the rents and profits thereof.
86.020 Covenant to pay money not implied.
No mortgage shall be construed as implying a covenant for the payment of the
sum thereby secured. When there is no express covenant for such payment
contained in the mortgage, and no bond or other separate instrument to secure
such payment shall have been given, the remedies of the mortgagee shall be
confined to the lands mentioned in the mortgage.
86.030 Absolute deed as a mortgage.
When a deed purports to be an absolute conveyance in terms, but is made or
intended to be made defeasible by a deed of defeasance or other instrument, the
original conveyance shall not be thereby defeated or affected as against any
person other than the maker of the defeasance, or the heirs or devisees of the
maker, or persons having actual notice thereof, unless the instrument of
defeasance is recorded with the recording officer of the county where the lands
lie.
86.040 Improvements on mortgaged lands.
No person shall sell, dispose of, remove or damage any building or other
improvements upon mortgaged lands. All such improvements are deemed a part of
the mortgaged property and are subject to the mortgage lien. When any
improvements are removed from the mortgaged premises in violation of this
section, the mortgagee may follow and regain possession of such improvements
wherever found or may recover the reasonable value thereof from the person
removing them.
86.050 Payment of taxes and other charges
by mortgagee. Whenever a mortgagor fails to pay when
due any taxes, assessments, interest on prior mortgages, insurance premiums or
other charges necessary to be paid for the protection of the lien of a
mortgagee, the mortgagee may pay the same, and such payments shall be added to
the mortgage debt and secured by the mortgage held by the mortgagee, and shall
bear interest at the same rate as specified in the mortgage. This section
applies only to mortgages executed after June 3, 1929, and does not affect the
right of parties to specifically contract otherwise than as provided in this
section.
86.060 Assignment of mortgage.
Mortgages may be assigned by an instrument in writing, executed and
acknowledged with the same formality as required in deeds and mortgages of real
property, and recorded in the records of mortgages of the county where the land
is situated.
86.070
[Repealed by 1965 c.252 §1]
86.080 Record of assignment not notice to
mortgagor. The recording of the assignment of a
mortgage is not of itself notice of such assignment to the mortgagor, or the
heirs or personal representatives of the mortgagor, so as to invalidate a
payment made by any of them to the mortgagee.
86.090
[Repealed by 1965 c.252 §1]
86.095 Acts not affecting priority of lien
of credit instrument. (1) Actions that do not affect
the priority granted to the lien of a credit instrument at the time it is first
received for recordation shall include but shall not be limited to:
(a)
Renegotiation or adjustment of the initial interest rate provided in the note
or the credit instrument, upward or downward, which may increase or decrease
the amount of periodic payments or may extend or shorten the term of the credit
instrument, or both;
(b)
An increase in the underlying obligation secured by the credit instrument
during any part of the term of the credit instrument as a result of deferment
of all or a portion of the interest payments and the addition of such payments
to the outstanding balance of the obligation;
(c)
Execution of new notes at designated intervals during the term of the credit
instrument that reflect changes made pursuant to paragraph (a) or (b) of this
subsection;
(d)
Extension of the term of the credit instrument;
(e)
Substitution of a note if there is no increase in the principal amount to be
paid under the note;
(f)
Modification of periodic payments required under the note if there is no
increase in the principal amount due under the note; or
(g)
Advances made under ORS 86.155.
(2)
As used in this section, the addition of accrued interest to the principal
amount of the underlying obligation is not an increase in the principal amount.
(3)
As used in this section, “credit instrument” includes a mortgage, a line of
credit instrument, a deed of trust and a contract for sale of real property. [1981
c.304 §2; 1987 c.716 §2; 1991 c.246 §1; 2001 c.20 §1]
86.100 Discharge of mortgage.
Any mortgage shall be discharged of record whenever there is presented to the
recording officer a certificate executed by the mortgagee, or the personal
representatives or assigns of the mortgagee, acknowledged or proved and
certified as prescribed by law to entitle conveyances to be recorded,
specifying that such mortgage has been paid or otherwise discharged. Every such
certificate, and the proof or acknowledgment thereof, shall be recorded at full
length. [Amended by 1965 c.252 §2]
86.110 Discharge of record by owner and
holder of mortgage note who is not the mortgagee of record.
(1) Whenever a promissory note secured by mortgage on real property is
transferred by indorsement without a formal assignment of the mortgage, and the
mortgage is recorded, the mortgage, upon payment of the promissory note, may be
discharged of record by the owner and holder of the promissory note making and
filing with the appropriate recording officer a certificate, verified by oath,
proving the satisfaction of mortgage and declaring, in substance, that the
owner and holder is the owner and holder of the note secured by the mortgage by
indorsement of the mortgagee and that the note has been fully paid and proving
that fact to the satisfaction of the recording officer.
(2)
Upon receiving the certificate, the recording officer shall record the document
and index the document as a satisfaction of mortgage. The record shall have the
same effect as a deed of release of the mortgagee duly acknowledged and
recorded. [Amended by 1965 c.252 §3; 2001 c.577 §1]
86.120 Discharge of mortgage on real property;
effect of discharge. No mortgage upon real property
shall be discharged except as provided in ORS 86.110 or by the person appearing
upon the records of the county where the mortgage is recorded to be the owner
thereof. A discharge of the mortgage by such person shall operate to free the
land described in the mortgage from the lien of the mortgage as against all
subsequent purchasers and incumbrances for value and without notice.
86.130 Discharge by foreign executors,
administrators, conservators and guardians.
Foreign executors, administrators, conservators and guardians may discharge
mortgages upon the records of any county upon recording with the recording
officer of the county in which the mortgage is recorded a certified copy of
their letters testamentary, or of administration, or of guardianship or of
conservatorship. The certificate shall include a statement that the letters are
in effect, and the certificate shall be recorded in the mortgage records. [Amended
by 1973 c.506 §§2,44]
86.140 Liability of mortgagee for failure
to discharge mortgage. If any mortgagee or the personal
representative or assignee of the mortgagee, after full performance of the
condition of the mortgage before or after a breach thereof, shall, within 30
days after being thereto requested, and after tender of reasonable charges,
fail to discharge the same, or to execute and acknowledge a certificate of
discharge or release thereof, that person shall be liable to the mortgagor, or
the heirs or assigns of the mortgagor, in the sum of $500 damages and also for
all actual damages occasioned by such failure, to be recovered in an action at
law. The owner and holder of the promissory note referred to in ORS 86.110 is
deemed the personal representative of the mortgagee for the purposes of this
section. [Amended by 1955 c.29 §1; 1955 c.512 §1; 1993 c.648 §1]
86.150 Loan agreements and promissory
notes to state maximum prepayment privilege penalty.
(1) Any person making a loan having a loan period of more than three years
secured by a mortgage or by a trust deed on real property located in this state
shall, with respect to such loan, expressly and clearly state on the loan
agreement and promissory note any maximum prepayment privilege penalty. The
statement shall include the maximum prepayment penalty applicable for
prepayment during the first year of the loan period and for each year
thereafter.
(2)
Violation of subsection (1) of this section with respect to a loan agreement or
promissory note shall render any prepayment privilege penalty provision in the
agreement void.
(3)
“Loan agreement” as used in this section means a written document issued in
connection with a particular loan which sets forth the terms upon which the
loan will be made. “Loan agreement” does not include a mortgage or trust deed
which secures a promissory note. Nothing in this section shall be deemed to
require a lender to issue a loan agreement.
(4)
This section does not apply to any loan agreement executed on or before
September 13, 1967, or any loan not primarily for personal, family or household
use. [1967 c.336 §§1,2; 1987 c.716 §3]
86.155 Priority of line of credit
instrument as to certain advances; procedure to limit indebtedness in
residential line of credit instrument. (1) As used
in this section:
(a)
“Credit agreement” means any promissory note, loan agreement or other agreement
that provides for advances subsequent to the date of recording of the line of
credit instrument that secures the note or agreement.
(b)
“Line of credit instrument” means a mortgage or trust deed that secures a
consumer or commercial credit agreement and creates a lien on specified real
property up to a stated amount, provided that the front page of the mortgage or
trust deed, or a memorandum thereof:
(A)
Contains the legend “line of credit mortgage,” “line of credit trust deed” or “line
of credit instrument” either in capital letters or underscored above the body
of the mortgage or trust deed;
(B)
States the maximum principal amount to be advanced pursuant to the credit
agreement; and
(C)
States the term or maturity date, if any, of the credit agreement exclusive of
any option to renew or extend the term or maturity date.
(c)
“Residential line of credit instrument” means any line of credit instrument
creating a lien on real property upon which are situated or will be constructed
four or fewer residential units, one of which, at the time the credit agreement
is entered into, is the borrower’s residence or is intended, following
construction, to be a residence of the borrower.
(2)
A line of credit instrument shall have priority, regardless of the knowledge of
the lienholder of any intervening lien, as of its date of recording as to the
following advances whether the advances are optional or obligatory advances:
(a)
Principal advances made any time pursuant to the credit agreement, to the
extent the total outstanding advances do not exceed the maximum principal
amount stated in the line of credit instrument under subsection (1)(b)(B) of
this section;
(b)
Interest, lawful charges and advances made any time pursuant to the credit
agreement for the reasonable protection of the real property including, but not
limited to, advances to pay real property taxes, hazard insurance premiums,
maintenance charges imposed under a declaration or restrictive covenant and reasonable
attorney fees, whether or not the interest, lawful charges or advances exceed
the maximum principal amount stated in the line of credit instrument under
subsection (1)(b)(B) of this section; and
(c)
Advances made any time after the date of recording and pursuant to a credit
agreement that is not secured by a residential line of credit instrument to
complete construction of previously agreed-upon improvements on the real
property, whether or not the advances exceed the maximum principal amount stated
in the line of credit instrument under subsection (1)(b)(B) of this section
provided, however, that the front page of the instrument states that the
maximum principal amount to be advanced pursuant to the credit agreement may be
exceeded by advances to complete construction pursuant to this subsection.
(3)
Actions that do not affect the priority granted to the advances set forth in
subsection (2) of this section shall include, but not be limited to, those
actions set forth in ORS 86.095 (1). If any modification to a credit agreement
increases the maximum principal amount to be advanced pursuant to the credit
agreement, then principal advances that are made that exceed the original
maximum principal amount stated in the line of credit instrument shall have
priority as of the date of recording an amendment to the line of credit
instrument that states the increased maximum principal amount.
(4)
In the case of a residential line of credit instrument, the debtor may limit
the indebtedness secured by that line of credit instrument to the amount of the
credit outstanding by delivering a notice by personal service upon the
lienholder or trust deed beneficiary or by mailing a notice by certified mail,
return receipt requested, to the lienholder or trust deed beneficiary at the
address given for payment or, if none, to the address of the lienholder or
trust deed beneficiary indicated in the line of credit instrument or deed of
trust. To be sufficient to limit indebtedness under this subsection, the notice
must:
(a)
State that it is made under this section;
(b)
Contain the legal description in the line of credit instrument or the street
address of the real property;
(c)
Provide the information necessary to locate the line of credit instrument in
the public record;
(d)
State the debtor’s intention to limit the amount of credit secured by the line
of credit instrument to the amount owed at the time the notice is received;
(e)
State the date sent; and
(f)
Be signed and acknowledged by all debtors obligated under the line of credit
instrument.
(5)
Not later than the 20th day after receipt of the notice described in subsection
(4) of this section, the lienholder or trust deed beneficiary shall:
(a)
Indorse on the notice, or on an addendum to the notice, the principal amount of
the indebtedness secured by the line of credit instrument on the date the
lienholder or trust deed beneficiary received notice;
(b)
Sign and acknowledge the notice or the addendum, if applicable; and
(c)
Record the notice and addendum in the public record where the line of credit
instrument was originally recorded.
(6)
If the lienholder or trust deed beneficiary fails to record the notice and
addendum, if applicable, within the time period specified in subsection (5) of
this section, the debtor may record the notice in the public record where the
line of credit instrument was originally recorded, together with proof of
receipt by, or personal delivery to, the lienholder or trust deed beneficiary.
(7)
Notwithstanding subsection (4) of this section, the line of credit instrument
shall continue to have priority as of its date of recording as to:
(a)
Principal advances, including any advance the creditor is required to honor,
that were made before a notice under subsection (4) of this section is received;
(b)
Interest, lawful charges and advances described in subsection (2)(b) and (c) of
this section; and
(c)
All advances made after a notice under subsection (4) of this section is
received that are within the amount owed at the time the notice under
subsection (4) of this section is given. [1987 c.716 §4; 1989 c.198 §1; 1991
c.313 §1; 1991 c.438 §1; 1997 c.152 §1; 2001 c.20 §2; 2007 c.71 §18]
86.157 Action for residual debt after
short sale of residential property. (1) As used
in this section:
(a)
“Borrower” means an individual who, directly or indirectly and individually or
together with another person, is obligated on a real estate loan agreement,
including but not limited to a mortgagor or a grantor, as defined in ORS
86.705.
(b)
“Lender” means a person that makes, extends or holds a real estate loan
agreement, including but not limited to a mortgagee or a beneficiary, as
defined in ORS 86.705.
(c)
“Real estate loan agreement” means an arrangement between a lender and a
borrower, including but not limited to a mortgage or a trust deed, by means of
which the lender agrees to extend a loan and the borrower agrees to secure the
loan in whole or in part with residential property, or an interest in
residential property, that is located in this state.
(d)
“Residential property” means real property upon which is situated four or fewer
improvements designed for residential use, one of which a borrower occupies as
the borrower’s residence.
(e)
“Residual debt” means an amount due on a loan, evidence of which exists in a
real estate loan agreement, note, bond, contract or similar written agreement,
that a borrower is unable to pay out of the proceeds from a sale of the
residential property that secures the loan.
(f)
“Short sale” means a sale of residential property that is subject to
foreclosure under ORS 86.705 to 86.795 or ORS chapter 88 for an amount that is
less than the remaining amount due on the loan that the residential property
secures.
(2)
If a lender reports to the Internal Revenue Service that as a consequence of or
in conjunction with a short sale of residential property the lender has
canceled all or a portion of a borrower’s debt under a real estate loan
agreement and the lender provides to the borrower written evidence of the
lender’s report to the Internal Revenue Service, the lender or an assignee of
the lender may not bring an action or otherwise seek payment for the residual
debt following the short sale. [2011 c.480 §1]
Note: 86.157
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 86 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
LATE CHARGES
86.160 Definitions for ORS 86.160 to
86.185. As used in ORS 86.160 to 86.185:
(1)
“Late charge” means a sum payable by a mortgagor to the holder of a mortgage
pursuant to a note or mortgage to compensate the holder for servicing and other
costs attributable to the receipt of mortgage payments from the mortgagor after
the date upon which payment is due.
(2)
“Mortgagor” includes the grantor under a deed of trust.
(3)
“Mortgage” includes a deed of trust.
(4)
“Residential real property” means a single-family, owner-occupied dwelling and
appurtenances. [1977 c.427 §1]
86.165 Late charge.
No lender may impose a late charge:
(1)
With respect to any periodic installment payment received by it within 15 days
after the due date. However, if the 15-day period ends on a Saturday, Sunday or
legal holiday the 15-day period is extended to the next business day.
(2)
In a dollar amount which exceeds five percent of the sum of principal and
interest of the delinquent periodic installment payment or the amount provided
in the note or mortgage held by the lender, whichever is the lesser.
(3)
Unless the note or mortgage held by the lender provides for payment of a late
charge on delinquent periodic installments and a monthly billing, coupon or
notice is provided by the lender disclosing the date on which periodic
installments are due and that a late charge may be imposed if payment is not
received by lender within 15 days thereafter. However, if the lender and the
borrower have provided in the note or other written loan agreement that the
payments on the loan shall be made by the means of automatic deductions from a
deposit account maintained by the borrower, the lender shall not be required to
provide the borrower with a monthly billing, coupon or notice under this
subsection with respect to any occasion on which there are insufficient funds
in the borrower’s account to cover the amount of a loan payment on the date the
loan payment becomes due and within the period described in subsection (1) of
this section.
(4)
More than once on any single installment. [1977 c.427 §2; 1979 c.101 §1; 1993
c.280 §1]
86.170 Prohibited mortgage provisions.
Any provision in a mortgage for a late charge except as authorized by ORS
86.160 to 86.185 shall be invalid. [1977 c.427 §3; 1997 c.631 §384]
86.175 Scope.
ORS 86.160 to 86.185 shall be applicable only to late charges on loans secured
by residential real property. [1977 c.427 §4]
86.180 ORS 86.160 to 86.185 not applicable
to certain mortgagees; notice to borrowers.
Nothing in ORS 86.160 to 86.185 shall pertain to a mortgage banking company or
mortgage servicing company except that if the terms of the mortgage do not
conform to the requirements of ORS 86.165, the borrower shall be notified prior
to the execution of the mortgage. [1977 c.427 §5]
86.185 ORS 86.160 to 86.185 not applicable
to certain loans. Nothing in ORS 86.160 to 86.185
shall apply to loans insured, guaranteed or purchased by an instrumentality of
the federal government, whose regulations establish late charge limitations. [1977
c.427 §6]
REAL ESTATE LOANS; SECURITY PROTECTION
86.205 Definitions for ORS 86.205 to
86.275. As used in ORS 86.205 to 86.275:
(1)
“Borrower” means any person who becomes obligated on a real estate loan
agreement, either directly or indirectly, and includes, but is not limited to,
mortgagors, grantors under trust deeds, vendees under conditional land sales
contracts, and persons who purchase real property securing a real estate loan
agreement, whether the persons assume the loan or purchase the property subject
to the loan.
(2)
“Direct reduction provision” or “capitalization provision” means any provision
which is part of a real estate loan agreement, whether incorporated into the
agreement or as part of a separately executed document, whereby the borrower
makes periodic prepayment of property taxes, insurance premiums and similar
charges to the lender or the designee of the lender, who applies such
prepayments first to accrued interest and then to the principal amount of the
loan, and upon payment of such charges, adds the amount of such payment to the
principal amount of the loan.
(3)
“Escrow account” means any account which is a part of a real estate loan
agreement, whether incorporated into the agreement or as part of a separately
executed document, whereby the borrower makes periodic prepayment to the lender
or the designee of the lender of taxes, insurance premiums, and similar
charges, and the lender or the designee of the lender pays the charges out of
the account at the due dates.
(4)
“Lender” means any person who makes, extends, or holds a real estate loan agreement
and includes, but is not limited to, mortgagees, beneficiaries under trust
deeds, and vendors under conditional land sales contracts.
(5)
“Lender’s security protection provision” means any provision which is a part of
a real estate loan agreement, whether incorporated into the agreement or as
part of a separately executed document, whereby the borrower prepays, pledges
or otherwise commits cash or other assets owned by the borrower in advance of
due dates for payments of property taxes, insurance premiums and similar
charges relating to the property securing the loan in order to assure timely
payment of the charges and protect the lender’s security interest in the
property, and includes, but is not limited to, escrow accounts, direct
reduction provisions, capitalization provisions, and pledges of savings
accounts.
(6)
“Person” means individuals, corporations, associations and partnerships, and
includes, but is not limited to, financial institutions as defined in ORS
706.008, investment companies, insurance companies, pension funds, and mortgage
companies.
(7)
“Real estate loan agreement” or “real estate loan” means any agreement
providing for a loan on residential property, including multifamily, occupied
by the borrower in the amount of $100,000 or less, secured in whole or in part
by real property, or any interest therein, located in this state, and includes,
but is not limited to, mortgages, trust deeds and conditional land sales
contracts. [1975 c.337 §1; 1997 c.631 §385; 2009 c.294 §11]
86.210 Types of lender security protection
provisions allowed. A lender may require a lender’s
security protection provision under ORS 86.205 to 86.275 either as a direct
reduction provision, an escrow account, or a pledge of an interest-bearing
savings account in an amount not to exceed the maximum amount which a lender
may require a borrower to deposit in a lender’s security protection provision
under ORS 86.240 and bearing interest at a rate not less than the rate required
on lender’s security protection provisions by ORS 86.245. [1975 c.337 §2; 1987
c.577 §1]
86.214 Application of ORS 86.210 and
86.245 to real estate loan agreements. To the extent
not inconsistent with provisions of existing real estate loan agreements and
provided such agreements are not silent with regard to a lender’s security
protection provision, the provisions of ORS 86.210, 86.245 and this section
shall apply to real estate loan agreements entered into prior to, on and after
October 1, 1987. To the extent that the provisions of existing real estate loan
agreements are inconsistent with the provisions of ORS 86.210, 86.245 and this
section, the existing real estate loan agreements are silent as to a lender’s
security protection provision, or any part of ORS 86.210, 86.245 and this
section is declared unconstitutional as to existing real estate loan
agreements, the provisions of ORS 86.205 to 86.275 (1985 Replacement Part)
shall govern and be in full force and effect. [1987 c.577 §4]
86.215 [1975
c.337 §§3,4,5; 1985 c.613 §2; repealed by 1987 c.577 §5]
86.220 [1975
c.337 §6; repealed by 1987 c.577 §5]
86.225 [1975
c.337 §6a; repealed by 1987 c.577 §5]
86.230 [1975
c.337 §6b; repealed by 1987 c.577 §5]
86.235 [1975
c.337 §7; repealed by 1987 c.577 §5]
86.240 Limit on amount required in
security protection escrow account; compliance with federal laws for certain
loans as compliance with state laws. (1) No
lender, in connection with a real estate loan agreement, shall require a
borrower or prospective borrower:
(a)
To deposit in any escrow account which may be established in connection with
the agreement, prior to or upon the date of settlement, a sum in excess of the
estimated total amount of property taxes, insurance premiums, and similar
charges which actually will be due and payable on the date of settlement, and
the pro rata portion thereof which has accrued, plus one-sixth of the estimated
total amount of the charges which will become due and payable during the
12-month period beginning on the date of settlement; or
(b)
To deposit in any escrow account, which may be established in connection with
the agreement, in any month beginning after the date of settlement a sum in
excess of one-sixth of the total amount of estimated property taxes, insurance
premiums or similar charges which will become due and payable during the
12-month period beginning on the first day of the month, except that in the
event the lender determines there will be a deficiency on the due date, the
lender shall not be prohibited from requiring additional monthly deposits in
the escrow account of pro rata portions of the deficiency corresponding to the
number of months from the date of the lender’s determination of the deficiency
to the date upon which the charges become due and payable.
(2)
For real estate loan agreements subject to the federal Real Estate Settlement
Procedures Act of 1974 (12 U.S.C. 2601 et seq.) and to Regulation X of the
federal Department of Housing and Urban Development (24 C.F.R. 3500.1 et seq.),
compliance with the Real Estate Settlement Procedures Act and with Regulation X
shall be considered to be compliance with this section. [1975 c.337 §13; 1995
c.182 §1]
86.245 Interest on security protection
deposits; exception. (1) As used in this section, “discount
rate” means the auction average rate on 91-day United States Treasury bills, as
established by the most recent auction of such Treasury bills, as published by
the United States Department of the Treasury, Bureau of the Public Debt, less
100 basis points.
(2)
Except as provided in subsections (5) and (7) of this section, any lender who
requires a lender’s security protection provision in connection with a real
estate loan agreement shall pay interest to the borrower on funds deposited in
the account at a rate not less than the discount rate. The discount rate shall
be determined with reference to the most recent auction date before May 15 and
November 15 each year.
(3)
The rate of interest payable on the account shall be adjusted semiannually to
reflect changes in the discount rate. These adjustments shall be calculated on
May 15 and November 15 each year. Adjustments calculated on May 15 shall take
effect on the following July 1, and adjustments calculated on November 15 shall
take effect on the following January 1.
(4)
Interest shall be computed on the average monthly balance in the account and
shall be paid not less than quarterly to the borrower by crediting to the
escrow account the amount of the interest due.
(5)
Except as provided in subsection (6) of this section, this section does not
apply to real estate loan agreements entered into prior to September 1, 1975,
or on which the payment of interest on a lender’s security protection provision
violates any state or federal law or regulation.
(6)
If federal law or regulation does not prohibit the payment of interest on a
lender’s security protection provision by federally chartered or organized
lenders, this section applies to the federally chartered or organized lenders
and the state chartered or organized lenders that are similar to the federally
chartered or organized lenders with respect to a lender’s security protection
provision executed in connection with real estate loan agreement entered into
prior to and in existence on September 1, 1975.
(7)
This section does not apply to real estate loan agreements made by, held for
sale to or sold to the State of Oregon. [1975 c.337 §8; 1979 c.327 §29; 1983
c.492 §1; 1987 c.577 §2; 1995 c.182 §2; 1997 c.68 §1; 2005 c.3 §1]
86.250 Service charge prohibited where
interest required. No lender requiring a lender’s
security protection provision with respect to which interest is required to be
paid by the lender under ORS 86.245 shall impose a service charge in connection
with such provision. [1975 c.337 §9]
86.255 Arrangements where security
protection provisions not required; information to borrower.
In any real estate loan agreement with respect to which a lender does not
require a lender’s security protection provision, the parties may mutually
agree to any arrangement whereby the borrower prepays, pledges or otherwise
commits assets in advance of due dates for payment of property taxes, insurance
premiums and similar charges relating to the real property in order to assist
the borrower in making timely payments of the charges. Prior to entering any
such arrangement, the lender shall furnish the borrower a statement in writing,
which may be set forth in the loan application:
(1)
That the arrangement is not a condition to the real estate loan agreement;
(2)
If it is an escrow account, whether or not the lender will pay interest and if
interest is to be paid, the rate of interest; and
(3)
Whether or not the borrower must pay the lender a charge for the service. If a
charge is agreed to, the charge shall not exceed the amount of interest income
earned under subsection (2) of this section. [1975 c.337 §10]
86.260 Payment of taxes where security
protection provision required; credit of discount where taxes not paid; cause
of action by borrower. (1) If a lender has a
requirement that the borrower pay funds into a lender’s security protection
provision for the payment of property taxes on property that is the security
for the real estate loan agreement, insurance premiums, and similar charges,
and there are funds in the account, the lender shall pay the taxes or the
amount in the account if less than the taxes due, in time to take advantage of
any discount authorized by ORS 311.505, and all other charges on or before the
due dates for payments.
(2)(a)
If the lender fails to pay the taxes in accordance with subsection (1) of this
section resulting in a loss of discount to the borrower, the lender shall
credit the lender’s security protection provision in an amount equal to the
amount of discount denied on account of such failure, together with any
interest that has accrued on the unpaid property taxes to the date the property
taxes are finally paid.
(b)
If the failure of the lender to comply with subsection (1) of this section is
willful and results in the loss to the borrower of the discount, or if the
failure to comply was not willful but upon discovery of the failure to comply
and the loss of discount, the lender fails to credit the lender’s security
protection provision required by paragraph (a) of this subsection, the borrower
shall have a cause of action against the lender to recover an amount equal to
15 times the amount of discount the borrower would have received, together with
any interest that accrued on the unpaid property taxes to the date of recovery.
The court may award reasonable attorney fees to the prevailing party in an
action under this section. [1975 c.337 §11; 1979 c.703 §15; 1981 c.897 §18;
1995 c.618 §48]
86.265 Effect of lender violation of ORS
86.205 to 86.275. A violation of ORS 86.205 to
86.275 by a lender shall render the lender’s security protection provision
voidable at the option of the borrower, and the lender shall be liable to the
borrower in an amount equal to:
(1)
The borrower’s actual damages or $100, whichever is greater, and
(2)
In the case of any successful action to enforce the foregoing liability, the
court costs of the action together with reasonable attorney fees at trial and
on appeal as determined by the court if the court finds that written demand for
the payment of the borrower’s claim was made on the lender not less than 10
days before the commencement of the action. No attorney fees shall be allowed
to the borrower if the court finds that the lender tendered to the borrower,
prior to the commencement of the action, an amount not less than the damages
awarded to the borrower. [1975 c.337 §14; 1981 c.897 §19]
86.270 ORS 86.205 to 86.275 inapplicable
to certain loan agreements; notice to borrower.
ORS 86.205 to 86.275 shall not apply to a real estate loan agreement which is
serviced or held for sale within one year by a mortgage servicing company
neither affiliated with nor owned in whole or in part by the purchaser and
which is made, extended or held by a purchaser whose principal place of
business is outside this state; provided that if the purchaser requires a
lender’s security protection provision, prior to entering into such agreement,
the mortgage servicing company shall furnish the borrower a statement in
writing, which may be set forth in the loan application, that the mortgage
servicing company is not required by the laws of this state to pay interest on
the lender’s security protection provision, and specifically informing the
borrower why the borrower is not entitled to interest on the account. [1975
c.337 §15]
86.275 Severability.
If any section of ORS 86.205 to 86.275, or the application of any section to
any real estate loan agreement shall be held invalid, the remainder of ORS
86.205 to 86.275, and the application of ORS 86.205 to 86.275 to any real
estate loan agreement other than the one or those to which it is held invalid,
shall not be affected thereby. [1975 c.337 §12]
86.310
[Amended by 1955 c.21 §1; repealed by 1961 c.726 §427]
86.315 [1953
c.700 §2; repealed by 1961 c.726 §427]
86.320
[Repealed by 1961 c.726 §427]
86.330 [Repealed
by 1961 c.726 §427]
86.340
[Repealed by 1961 c.726 §427]
86.350
[Amended by 1955 c.182 §1; repealed by 1961 c.726 §427]
86.360
[Repealed by 1961 c.726 §427]
86.370
[Amended by 1957 c.404 §1; repealed by 1961 c.726 §427]
86.380
[Repealed by 1961 c.726 §427]
86.390
[Repealed by 1961 c.726 §427]
86.400
[Repealed by 1961 c.726 §427]
CHATTEL MORTGAGES
86.405 Secretary of State to furnish
statement of mortgages filed before September 1, 1963; fee.
Upon the payment of a fee of 50 cents for each name to be searched for chattel
mortgages filed under former ORS 86.370 or 86.390, prior to September 1, 1963,
the Secretary of State shall furnish to any person applying therefor a
statement of any mortgages noted on the indexes created under former ORS
86.380, or if no mortgages are noted, a statement to that effect. All such fees
received by the Secretary of State shall be promptly paid to the State
Treasurer and placed in the General Fund. [1961 c.726 §409]
86.410
[Repealed by 1961 c.726 §427]
86.420
[Repealed by 1961 c.726 §427]
86.430
[Repealed by 1961 c.726 §427]
86.440 Discharge of mortgage recorded with
county recording officer. Whenever any mortgage recorded
under the provisions of ORS 86.350 (1959 Replacement Part) is paid or otherwise
satisfied, it shall be discharged by the recording with the recording officer
of a certificate of such owner, executed and acknowledged with the same
formalities as are prerequisite to the recording of any such mortgage, showing
the date of execution, date of recording, and recording number of the record
thereof, and that such mortgage has been fully discharged. [Amended by 1999
c.654 §4]
86.450
[Repealed by 1961 c.726 §427]
86.460 Discharge of mortgage filed with
Secretary of State; fee. In the event of the satisfaction
or release of any chattel mortgage, a certified copy of which has been filed
with the Secretary of State prior to September 1, 1963; the person so
satisfying or releasing the mortgage shall send a duly executed discharge or
certified copy thereof, with a fee of 25 cents, to the Secretary of State, who
shall note such discharge in an appropriate column of the index kept by the
Secretary of State. All such fees received by the Secretary of State shall be
promptly paid to the State Treasurer and placed in the General Fund. [Amended
by 1961 c.726 §407]
86.470 Discharge, assignment and
foreclosure of mortgages on chattels registered and licensed by Department of
Transportation. The recording officer of
counties having less than 50,000 population on the last day of each calendar
month, and the recording officer of counties having more than 50,000 population
on the last day of each calendar week, shall notify the Department of
Transportation, upon forms to be provided by the department, of the partial or
full satisfaction, assignment or foreclosure during such period of all
mortgages theretofore certified to the department prior to September 1, 1963,
as formerly provided in ORS 86.390. The notice shall completely identify the
mortgage so satisfied, assigned or foreclosed; and the department thereupon
shall note on each index margin such satisfaction, assignment or foreclosure. [Amended
by 1961 c.726 §408]
86.480
[Repealed by 1961 c.726 §427]
86.490
[Repealed by 1961 c.726 §427]
86.500 [Amended
by 1955 c.30 §1; repealed by 1961 c.726 §427]
86.510
[Repealed by 1961 c.726 §427]
86.520
[Repealed by 1961 c.726 §427]
INVESTMENTS; FEDERAL HOUSING
ADMINISTRATOR
86.610 Power of financial institutions,
fiduciaries and others to make loans secured by property insured by Federal
Housing Administrator. Financial institutions as
defined in ORS 706.008, trustees, guardians, conservators, executors,
administrators, other fiduciaries and all other persons, associations and
corporations, subject to the laws of this state, may make such loans, secured
by real property or leasehold, as the Federal Housing Administrator insures or
makes a commitment to insure, and may obtain such insurance. [Amended by 1967
c.359 §678; 1973 c.823 §93; 1997 c.631 §386]
86.620 Investment of funds of financial
institutions, fiduciaries and others in bonds and mortgages accepted by Federal
Housing Administrator, debentures issued thereby, and obligations of national
mortgage associations. Financial institutions as
defined in ORS 706.008, trustees, guardians, conservators, executors,
administrators, other fiduciaries and all other persons, associations and
corporations, subject to the laws of this state, may invest their funds, and
the money in their custody or possession, eligible for investment, in bonds and
mortgages on real property insured by the Federal Housing Administrator, in
debentures issued by the Federal Housing Administrator, and in obligations of
national mortgage associations. [Amended by 1967 c.359 §679; 1973 c.823 §94;
1997 c.631 §387]
86.630 Eligibility of securities described
in ORS 86.620 as security for deposits, investment or reserve of securities.
Whenever, by statute, collateral is required as security for the deposit of
public or other funds, or deposits are required to be made with any public
official or department, or an investment of capital or surplus, or a reserve or
other fund is required to be maintained consisting of designated securities,
the securities described in ORS 86.620 shall be eligible for such purposes.
86.640 Applicability of other laws
requiring security or regulating loans and investments.
No law of this state requiring security upon which loans or investments may be
made, or prescribing the nature, amount or form of such security, or
prescribing or limiting the period for which loans or investments may be made,
shall apply to loans or investments made pursuant to ORS 86.610 and 86.620.
TRUST DEEDS
86.705 Definitions for ORS 86.705 to
86.795. As used in ORS 86.705 to 86.795:
(1)
“Affordable housing covenant” has the meaning given that term in ORS 456.270.
(2)
“Beneficiary” means a person named or otherwise designated in a trust deed as
the person for whose benefit a trust deed is given, or the person’s successor
in interest, and who is not the trustee unless the beneficiary is qualified to
be a trustee under ORS 86.790 (1)(d).
(3)
“Eligible covenant holder” has the meaning given that term in ORS 456.270.
(4)
“Grantor” means the person that conveys an interest in real property by a trust
deed as security for the performance of an obligation.
(5)
“Residential trust deed” means a trust deed on property upon which are situated
four or fewer residential units, one of which the grantor, the grantor’s spouse
or the grantor’s minor or dependent child occupies as a principal residence at
the time a trust deed foreclosure is commenced.
(6)
“Residential unit” means an improvement designed for residential use.
(7)
“Trust deed” means a deed executed in conformity with ORS 86.705 to 86.795 that
conveys an interest in real property to a trustee in trust to secure the
performance of an obligation the grantor or other person named in the deed owes
to a beneficiary.
(8)
“Trustee” means a person, other than the beneficiary, to whom a trust deed
conveys an interest in real property, or the person’s successor in interest, or
an employee of the beneficiary, if the employee is qualified to be a trustee
under ORS 86.790. [1959 c.625 §1; 1961 c.616 §1; 1975 c.618 §1; 1983 c.719 §1;
1985 c.817 §1; 1989 c.190 §1; 2011 c.712 §1]
86.710 Trust deeds authorized to secure
performance of an obligation; methods of foreclosure after breach.
Transfers in trust of an interest in real property may be made to secure the
performance of an obligation of a grantor, or any other person named in the
deed, to a beneficiary. Where any transfer in trust of an interest in real
property is made pursuant to the provisions of ORS 86.705 to 86.795 to secure
the performance of an obligation, a power of sale is conferred upon the
trustee. The power of sale may be exercised after a breach of the obligation
for which the transfer is security; and a trust deed, executed in conformity
with ORS 86.705 to 86.795, may be foreclosed by advertisement and sale in the
manner provided in ORS 86.705 to 86.795, or, at the option of the beneficiary,
may be foreclosed by the beneficiary as provided by law for the foreclosure of
mortgages on real property. [1959 c.625 §2; 1961 c.616 §2; 1965 c.457 §1; 1975
c.618 §2; 1979 c.879 §1; 1983 c.719 §2; 1987 c.480 §1]
86.715 Trust deed deemed to be mortgage on
real property; applicability of mortgage laws.
A trust deed is deemed to be a mortgage on real property and is subject to all
laws relating to mortgages on real property except to the extent that such laws
are inconsistent with the provisions of ORS 86.705 to 86.795, in which event
the provisions of ORS 86.705 to 86.795 shall control. For the purpose of
applying the mortgage laws, the grantor in a trust deed is deemed the mortgagor
and the beneficiary is deemed the mortgagee. [1959 c.625 §21]
86.720 Reconveyance upon performance;
liability for failure to reconvey; release of trust deed.
(1) Within 30 days after performance of the obligation secured by the trust
deed, the beneficiary shall deliver a written request to the trustee to
reconvey the estate of real property described in the trust deed to the
grantor. Within 30 days after the beneficiary delivers the written request to
reconvey to the trustee, the trustee shall reconvey the estate of real property
described in the trust deed to the grantor. In the event the obligation is
performed and the beneficiary refuses to request reconveyance or the trustee
refuses to reconvey the property, the beneficiary or trustee so refusing shall
be liable as provided by ORS 86.140 in the case of refusal to execute a
discharge or satisfaction of a mortgage on real property. The trustee may
charge a reasonable fee for all services involved in the preparation, execution
and recordation of any reconveyance executed pursuant to this section.
(2)
If a full reconveyance of a trust deed has not been executed and recorded
pursuant to the provisions of subsection (1) of this section within 60 calendar
days of the date the obligation secured by the trust deed was fully satisfied,
then:
(a)
If the obligation was satisfied by a title insurance company or insurance
producer or by payment through an escrow transacted by a title insurance
company or insurance producer, upon the written request of the grantor or the
grantor’s successor in interest, the tender of reasonable charges and the
compliance with the notice requirements of subsection (3) of this section, the
title insurance company or insurance producer shall prepare, execute and record
a release of trust deed.
(b)
Upon compliance with the notice requirements of subsection (3) of this section,
any title insurance company or insurance producer may prepare, execute and
record a release of trust deed.
(3)
Prior to the issuance and recording of a release pursuant to this section, the
title insurance company or insurance producer shall give notice of the
intention to record a release of trust deed to the beneficiary of record and,
if different, the party to whom the full satisfaction payment was made. The
notice shall:
(a)
Provide that the parties to whom the notice is sent shall have a period of 30
days from the date of mailing to send to the title insurance company or
insurance producer their written objections to the execution and recording of
the release of trust deed;
(b)
Be sent by first class mail with postage prepaid, addressed to the named
interested parties at their last-known addresses; and
(c)
Identify the trust deed by the name of the original grantor and any successor
in interest on whose behalf payment was made and by the recording reference.
(4)
The release of trust deed shall recite on the first page that it has been
executed and recorded pursuant to the provisions of this section. The release
shall be properly acknowledged and shall set forth:
(a)
The name of the beneficiary to whom the payment was made;
(b)
The name of the original grantor of the trust deed and any successor in
interest on whose behalf payment was made;
(c)
The recording reference to the trust deed that is to be released;
(d)
A recital that the obligation secured by the trust deed has been paid in full;
(e)
The date and amount of payment;
(f)
The date of mailing of notice required by this section; and
(g)
A recital that no written objections were received by the title insurance
company or insurance producer.
(5)
The release of trust deed executed pursuant to this section shall be entitled
to recordation and, when recorded, shall be deemed to be the equivalent of a
reconveyance of a trust deed.
(6)
The title insurance company or insurance producer shall not record or cause to
be recorded a release of trust deed when any of the following circumstances
exist:
(a)
The 30-day period following notice given under this section has not expired; or
(b)
Written objection to such recordation has been received by the title insurance
company or insurance producer from any of the parties to whom notice was sent.
(7)
The trustee, title insurance company or insurance producer may charge a
reasonable fee for all services involved in the preparation, execution,
recordation and compliance with this section, to effect the release of trust
deed.
(8)
Subsection (2) of this section does not excuse the beneficiary or trustee from
compliance with subsection (1) of this section.
(9)
In addition to any other remedy provided by law, a title insurance company or
insurance producer preparing, executing or recording a release of trust deed
shall be liable to any party for damages that the party sustains by reason of
the negligence or willful misconduct of the title insurance company or
insurance producer in connection with the issuance, execution or recording of
the release pursuant to this section. Except as provided in subsection (10) of
this section, the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(10)
The court may not award attorney fees to a prevailing defendant under the
provisions of subsection (9) of this section if the action under this section
is maintained as a class action pursuant to ORCP 32.
(11)
As used in this section, “insurance producer” means an authorized issuer of
title insurance policies of a title insurance company who is licensed as an
insurance producer for that purpose pursuant to ORS chapter 744.
(12)
Subsections (2) to (11) of this section shall be applicable only to full
reconveyances of the property described in the trust deed and not to
reconveyances of parts or portions of the property.
(13)
Subsections (1) to (12) of this section are applicable to all trust deeds,
whether executed before, on or after November 4, 1993.
(14)
A title insurance company or agent is not required to prepare, execute and
record a release of trust deed under subsections (2) to (12) of this section if
the obligation secured by the trust deed was satisfied prior to November 4,
1993. [1959 c.625 §18; 1993 c.648 §2; 1995 c.696 §15; 2001 c.254 §1; 2003 c.364
§49]
86.722 Correction of error concerning
status or effect of trust deed; rights of bona fide purchaser.
(1) To correct an error concerning the status or effect of a recorded trust
deed, a person may present an instrument to the county clerk for recording in
the deed and mortgage records of the county, and the county clerk shall record
the instrument if it otherwise meets the requirements for an instrument to be
recorded under ORS chapter 205 and is in substantially the following form:
______________________________________________________________________________
CORRECTION OF
ERROR(S)
IN THE DEED
AND MORTGAGE
RECORDS
RELATING TO
A TRUST DEED
(ORS 86.705 to
86.795)
This instrument is recorded to provide
notice of an error relating to:
Original Deed of Trust
County
clerk instrument record #:
Grantor
(name):
Trustee
(name):
Beneficiary
(name):
Assignee(s),
if any (name(s)):
The error to be corrected is (check
one):
[ ] Erroneous
reconveyance
of trust deed
Date of recording:
County clerk instrument record #:
[ ] Erroneous
recording of
Trustee’s Deed
Date of recording:
County clerk instrument record #:
The
result of this error correction is (check one): [ ] The original trust deed is hereby reinstated; or [ ] The Trustee’s Deed is hereby set aside as
though the erroneous instrument had not been recorded.
Date _____
Name (printed) _________
Signature _________
(Beneficiary of original deed of trust)
STATE OF OREGON )
) ss.
County of_____ )
The foregoing instrument was acknowledged
before me this ___ day of________, 2___, by________.
____________
Notary Public for Oregon
My commission expires: ______
STATE OF OREGON )
) ss.
County of _____ )
The foregoing instrument was acknowledged
before me this ___ day of________, 2___, by ________ and by ______ of________,
a corporation on behalf of the corporation.
_______________
Notary Public for Oregon
My commission expires: ______
______________________________________________________________________________
(2) Reinstatement of a trust deed based on
the correction of an error under this section does not affect the rights of a
bona fide purchaser for value or of a bona fide purchaser for value holding a
security interest in the real property if the purchaser acquired an interest
after the erroneous trust deed reconveyance or trustee’s deed was recorded and
before the error was corrected. [2009 c.628 §3]
86.725
Time within which foreclosure must be commenced.
The foreclosure of a trust deed by advertisement and sale or the foreclosure of
a trust deed by judicial procedure shall be commenced within the time,
including extensions, provided by ORS 88.110 and 88.120 for the foreclosure of
a mortgage on real property. [1959 c.625 §20]
86.730
[1959 c.625 §§17,22; repealed by 1961 c.616 §8]
86.735
Foreclosure by advertisement and sale. The trustee
may foreclose a trust deed by advertisement and sale in the manner provided in
ORS 86.740 to 86.755 if:
(1) The trust deed, any assignments of the
trust deed by the trustee or the beneficiary and any appointment of a successor
trustee are recorded in the mortgage records in the counties in which the
property described in the deed is situated; and
(2) There is a default by the grantor or
other person owing an obligation, the performance of which is secured by the
trust deed, or by their successors in interest with respect to any provision in
the deed which authorizes sale in the event of default of such provision; and
(3) The trustee or beneficiary has filed
for record in the county clerk’s office in each county where the trust
property, or some part of it, is situated, a notice of default containing the
information required by ORS 86.745 and containing the trustee’s or beneficiary’s
election to sell the property to satisfy the obligation; and
(4) No action has been instituted to
recover the debt or any part of it then remaining secured by the trust deed,
or, if such action has been instituted, the action has been dismissed, except
that:
(a) Subject to ORS 86.010 and the
procedural requirements of ORCP 79 and 80, an action may be instituted to
appoint a receiver or to obtain a temporary restraining order during
foreclosure of a trust deed by advertisement and sale, except that a receiver
shall not be appointed with respect to a single-family residence which is
occupied as the principal residence of the grantor, the grantor’s spouse or the
grantor’s minor or dependent child.
(b) An action may be commenced for the
judicial or nonjudicial foreclosure of the same trust deed as to any other
property covered thereby, or any other trust deeds, mortgages, security
agreements or other consensual or nonconsensual security interests or liens
securing repayment of the debt. [1959 c.625 §§4,5; 1965 c.457 §2; 1983 c.719 §3;
1985 c.817 §2; 1989 c.190 §2]
86.737
Notice to grantor; requirements; additional forms; rules.
(1) If a notice of default is recorded for property that is subject to a
residential trust deed, the sender of a notice of sale under ORS 86.740 shall,
on or before the date the notice of sale is served or mailed, give notice under
this section to the grantor by both first class and certified mail with return
receipt requested. Subject to any rules adopted under subsection (2) of this
section, the notice must be in substantially the following form and printed in
at least 14-point type:
______________________________________________________________________________
NOTICE: YOU ARE IN DANGER OF
LOSING
YOUR PROPERTY IF YOU DO NOT TAKE
ACTION IMMEDIATELY
This
notice is about your mortgage loan on your property at _________ (address).
Your
lender has decided to sell this property because the money due on your mortgage
loan has not been paid on time or because you have failed to fulfill some other
obligation to your lender. This is sometimes called “foreclosure.”
The
amount you would have had to pay as of _____ (date) to bring your mortgage loan
current was $_____. The amount you must now pay to bring your loan current may
have increased since that date.
By
law, your lender has to provide you with details about the amount you owe, if
you ask. You may call _________ (telephone number) to find out the exact amount
you must pay to bring your mortgage loan current and to get other details about
the amount you owe. You may also get these details by sending a request by
certified mail to:_________.
THIS
IS WHEN AND WHERE YOUR PROPERTY WILL BE SOLD IF YOU DO NOT TAKE ACTION:
Date
and time:_________, 2_____ at _________
Place:
_________
THIS
IS WHAT YOU CAN DO TO STOP THE SALE:
1. You can pay the amount past due or
correct any other default, up to five days before the sale.
2. You can refinance or otherwise pay off
the loan in full anytime before the sale.
3. You can call _________ (name) at _________
(telephone number) to find out if your lender is willing to give you more time
or change the terms of your loan.
4. You can sell your home, provided the
sale price is enough to pay what you owe.
There
are government agencies and nonprofit organizations that can give you
information about foreclosure and help you decide what to do. For the name and
telephone number of an organization near you, please call the statewide
telephone contact number at_________. You may also wish to talk to a lawyer. If
you need help finding a lawyer, you may call the Oregon State Bar’s Lawyer
Referral Service at _________ or toll-free in Oregon at _________ or you may
visit its website at:_________. Legal assistance may be available if you have a
low income and meet federal poverty guidelines. For more information and a
directory of legal aid programs, go to_________.
WARNING:
You may get offers from people who tell you they can help you keep your
property. You should be careful about those offers. Make sure you understand
any papers you are asked to sign. If you have any questions, talk to a lawyer
or one of the organizations mentioned above before signing.
DATED:_____,
2_____
Trustee
name: _________(print)
Trustee
signature: _________
Trustee
telephone number: _________
______________________________________________________________________________
(2) The Department of Consumer and
Business Services may adopt rules prescribing the format, font size and other
physical characteristics of the notice form set forth in subsection (1) of this
section. The department shall adopt rules specifying the resource telephone
contact numbers and website addresses the sender is to insert in completing the
notice.
(3) When filling blanks in the notice form
set forth in subsection (1) of this section, the sender of the notice shall
include, stated in plain language:
(a) The amount of payment that was needed
to bring the mortgage loan current as of the date stated in the notice; and
(b) One or more telephone numbers
consisting of:
(A) A telephone number that will allow the
grantor access during regular business hours to details regarding the grantor’s
loan delinquency and repayment information; and
(B) A telephone number that will allow the
grantor access during regular business hours to person-to-person consultation
with an individual authorized by the beneficiary to discuss the grantor’s
payment and loan term negotiation and modification options.
(4) Telephone numbers described in
subsection (3) of this section must be toll-free numbers unless the
beneficiary:
(a) Made the loan with the beneficiary’s
own money;
(b) Made the loan for the beneficiary’s
own investment; and
(c) Is not in the business of making loans
secured by an interest in real estate.
(5) If the sender giving notice under
subsection (1) of this section has actual knowledge that the grantor is not the
occupant of the residential real property, the sender shall also give notice to
the occupant of the property by both first class and certified mail with return
receipt requested. [2008 c.19 §20; 2009 c.864 §§1,4]
86.739
Failure to give notice to grantor; remedy. (1) A
grantor shall have the same rights possessed by the holder of a junior lien or
interest who was omitted as a party defendant in a judicial foreclosure
proceeding if:
(a) The notice required by ORS 86.737 is
not sent to the grantor;
(b) The grantor does not actually receive
a copy of the notice at least 25 days before the date on which the trustee
conducts the sale; and
(c) The grantor informs the trustee, the
purchaser, the beneficiary or any loan servicer in writing not later than 60
days after the purchaser takes possession of the property upon which a trust
deed was foreclosed that the grantor did not receive the notice and did not
have actual notice of the sale.
(2) The purchaser at the trustee’s sale,
or the purchaser’s heirs, assigns or transferees, shall have the same rights
possessed by a purchaser at a sheriff’s sale following a judicial foreclosure. [2008
c.19 §21; 2009 c.229 §3]
86.740
Notice of sale to be given to certain persons.
(1) Subsequent to recording notice of default as provided in ORS 86.735 and at
least 120 days before the day the trustee conducts the sale, notice of the sale
shall be served pursuant to ORCP 7 D(2) and 7 D(3) or mailed by both first
class and certified mail with return receipt requested, to the last-known
address of the following persons or their legal representatives, if any:
(a) The grantor in the trust deed.
(b) Any successor in interest to the
grantor whose interest appears of record, or of whose interest the trustee or
the beneficiary has actual notice.
(c) Any person, including the Department
of Revenue or any other state agency, having a lien or interest subsequent to
the trust deed if the lien or interest appears of record or the beneficiary has
actual notice of the lien or interest.
(d) Any person requesting notice as
provided in ORS 86.785.
(2) A notice served by mail under
subsection (1) of this section is effective when the notice is mailed.
(3)(a) The disability, insanity or death
of any person to whom notice of sale must be given under this section does not
delay or impair in any way the trustee’s right under a trust deed to foreclose
under the deed. If the disability, insanity or death occurs prior to the
recording of notice of default, the notice shall be given instead to the
guardian, the conservator of the estate of the person or the administrator or
personal representative of the person, as the case may be, in the manner and by
the time set forth in this section.
(b) If the disability, insanity or death
of any person to whom notice of sale must be given under this section occurs on
or after the recording of notice of default, the trustee shall, if and when the
trustee has knowledge of the disability, insanity or death, promptly give the
guardian, conservator of the estate or the administrator or personal
representative, as the case may be, the notice provided in ORS 86.745. This
notice shall be given by first class and certified mail with return receipt
requested, to the last-known address of the guardian, conservator or
administrator or personal representative.
(c) In the event there is no administrator
or personal representative of the estate of the person to whom notice of sale
must be given under this section, the notice may be given instead to the heirs
at law or devisees of the deceased person in the manner and by the time set
forth in this section.
(4) If the owner of real property subject
to foreclosure dies and the real property is also subject to a transfer on
death deed, as provided by ORS 93.948 to 93.979, notice of sale must be given
under this section to the beneficiary designated under the transfer on death
deed. [1959 c.625 §6; 1961 c.616 §3; 1965 c.457 §3; 1973 c.823 §95; 1979 c.879 §2;
1983 c.719 §4; 1989 c.190 §3; 2005 c.129 §1; 2011 c.212 §22]
86.742
Failure to give notice of sale; action by omitted person; defense; pleading and
proving knowledge of sale; attorney fees; exclusive remedy.
(1) If the trustee fails to give notice of the sale to any person entitled to
notice under ORS 86.740 (1)(c), and such person did not have actual notice of
the sale at least 25 days prior to the date the trustee conducted the sale,
such omitted person shall have the same rights possessed by the holder of a
junior lien or interest who was omitted as a party defendant in a judicial
foreclosure proceeding, and the purchaser at the trustee’s sale or the
purchaser’s heirs, assigns or transferees, shall have the same rights possessed
by a purchaser at a sheriff’s sale following a judicial foreclosure.
(2) The omitted person may also commence
an action against the trustee in the circuit court in the county where the real
property is located. In an action against the trustee, the omitted person shall
be entitled to damages upon proof that:
(a) The trustee did not give notice of the
sale to the omitted person in the manner required by ORS 86.740 (1)(c) and
86.750;
(b) A search of the record under the name
of the grantor as it appears on the trust deed, or the name of the grantor’s
successor in interest, would have revealed the omitted person’s interest;
(c) The omitted person could and would
have cured the default under ORS 86.753; and
(d) The omitted person sustained actual
damages as a result of such person’s loss of the opportunity to cure the
default under ORS 86.753 (1).
(3) In an action against the trustee under
subsection (2) of this section, any defendant or third party defendant may move
for dismissal on the ground that the omitted person would not or could not have
cured the default and reinstated the trust deed if the omitted person had
received the notice required by ORS 86.740 (1)(c). The court shall hold a
hearing on such motion prior to any hearing on any motion for summary judgment,
and prior to trial of the action. The court shall deny the motion only if the
omitted person produces affidavits or other evidence sufficient for a
reasonable jury to find, applying a standard of clear and convincing evidence,
that the omitted person had the financial ability to cure the default under ORS
86.753 prior to the date of the trustee’s sale, and that the omitted person
would have done so had the omitted person received the notice required by ORS
86.740 (1)(c). If the court grants the motion to dismiss it shall award
attorney fees pursuant to subsection (5) of this section.
(4) In any action against the trustee or
any other party under this section the omitted person shall plead that the
omitted person did not have actual knowledge of the sale at least 25 days prior
to the date the trustee conducted the sale, but thereafter the defendant shall
have the burden of proving that the omitted person did have such notice.
(5) In all suits brought under this
section, the applicable court may, upon entering judgment, allow to the
prevailing party as a part of the costs a reasonable amount for attorney fees
at trial and on appeal.
(6) The remedies described in subsections
(1) to (5) of this section shall be the sole remedies available to a person
entitled to notice of foreclosure by advertisement and sale under ORS 86.740
(1)(c), who failed to receive such notice. Such a person’s failure to redeem or
to commence an action against the trustee within five years of the date of a trustee’s
sale under ORS 86.755 shall bar any action under this section or any other
applicable law. [1985 c.817 §9; 1995 c.618 §51]
86.745
Contents of notice of sale; additional notices; contents and requirements.
The notice of sale shall:
(1) List the names of the grantor, trustee
and beneficiary in the trust deed, and the mailing address of the trustee.
(2) Describe the property the trust deed
covers.
(3) Identify the book and page of the
mortgage records that record the trust deed.
(4) State the default for which the
foreclosure is made.
(5) State the sum owing on the obligation
that the trust deed secures.
(6) State that the property will be sold
to satisfy the obligation.
(7) Set forth the date, time and place of
the sale.
(8) State that the right exists under ORS
86.753 to have the proceeding dismissed and the trust deed reinstated by paying
the entire amount then due, together with costs, trustee’s fees and attorney
fees, and by curing any other default complained of in the notice of default,
at any time that is not later than five days before the date last set for the
sale.
(9) If the property includes one or more
dwelling units that are subject to ORS chapter 90, include a notice addressed
clearly to any individual who occupies the property and who is or might be a
residential tenant. The notice required under this subsection must:
(a) Include contact information for the
Oregon State Bar and a person or organization that provides legal help to
individuals at no charge to the individual;
(b) Include information concerning the
right the individual has to notice under ORS 86.755 (6)(c);
(c) Be set apart from other text in the
notice of sale; and
(d) Be in substantially the following
form:
______________________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS
The property in which you are living is in
foreclosure. A foreclosure sale is scheduled for ________ (date). The date of
this sale may be postponed. Unless the lender that is foreclosing on this property
is paid before the sale date, the foreclosure will go through and someone new
will own this property. After the sale, the new owner is required to provide
you with contact information and notice that the sale took place.
The following information applies to you
only if you are a bona fide tenant occupying and renting this property as a
residential dwelling under a legitimate rental agreement. The information does
not apply to you if you own this property or if you are not a bona fide
residential tenant.
If the foreclosure sale goes through, the
new owner will have the right to require you to move out. Before the new owner
can require you to move, the new owner must provide you with written notice
that specifies the date by which you must move out. If you do not leave before
the move-out date, the new owner can have the sheriff remove you from the
property after a court hearing. You will receive notice of the court hearing.
PROTECTION FROM EVICTION
IF YOU ARE A BONA FIDE TENANT OCCUPYING
AND RENTING THIS PROPERTY AS A RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO
CONTINUE LIVING IN THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
•THE REMAINDER OF YOUR FIXED TERM LEASE,
IF YOU HAVE A FIXED TERM LEASE; OR
•AT LEAST 90 DAYS FROM THE DATE YOU ARE
GIVEN A WRITTEN TERMINATION NOTICE.
If the new owner wants to move in and use
this property as a primary residence, the new owner can give you written notice
and require you to move out after 90 days, even though you have a fixed term
lease with more than 90 days left.
You must be provided with at least 90 days’
written notice after the foreclosure sale before you can be required to move.
A bona fide tenant is a residential tenant
who is not the borrower (property owner) or a child, spouse or parent of the
borrower, and whose rental agreement:
•Is the result of an arm’s-length
transaction;
•Requires the payment of rent that is not
substantially less than fair market rent for the property, unless the rent is
reduced or subsidized due to a federal, state or local subsidy; and
•Was entered into prior to the date of the
foreclosure sale.
ABOUT
YOUR TENANCY BETWEEN NOW AND THE FORECLOSURE SALE:
RENT
YOU SHOULD CONTINUE TO PAY RENT TO YOUR
LANDLORD UNTIL THE PROPERTY IS SOLD OR UNTIL A COURT TELLS YOU OTHERWISE. IF
YOU DO NOT PAY RENT, YOU CAN BE EVICTED. BE SURE TO KEEP PROOF OF ANY PAYMENTS
YOU MAKE.
SECURITY DEPOSIT
You may apply your security deposit and
any rent you paid in advance against the current rent you owe your landlord as
provided in ORS 90.367. To do this, you must notify your landlord in writing
that you want to subtract the amount of your security deposit or prepaid rent
from your rent payment. You may do this only for the rent you owe your current
landlord. If you do this, you must do so before the foreclosure sale. The
business or individual who buys this property at the foreclosure sale is not
responsible to you for any deposit or prepaid rent you paid to your landlord.
ABOUT
YOUR TENANCY AFTER THE FORECLOSURE SALE:
The new owner that buys this property at
the foreclosure sale may be willing to allow you to stay as a tenant instead of
requiring you to move out after 90 days or at the end of your fixed term lease.
After the sale, you should receive a written notice informing you that the sale
took place and giving you the new owner’s name and contact information. You
should contact the new owner if you would like to stay. If the new owner
accepts rent from you, signs a new residential rental agreement with you or
does not notify you in writing within 30 days after the date of the foreclosure
sale that you must move out, the new owner becomes your new landlord and must
maintain the property. Otherwise:
•You do not owe rent;
•The new owner is not your landlord and is
not responsible for maintaining the property on your behalf; and
•You must move out by the date the new
owner specifies in a notice to you.
The new owner may offer to pay your moving
expenses and any other costs or amounts you and the new owner agree on in
exchange for your agreement to leave the premises in less than 90 days or
before your fixed term lease expires. You should speak with a lawyer to fully
understand your rights before making any decisions regarding your tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO
FORCE YOU TO LEAVE YOUR DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE
AND GOING TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS, YOU
SHOULD CONSULT A LAWYER. If you believe you need legal assistance, contact the
Oregon State Bar and ask for the lawyer referral service. Contact information
for the Oregon State Bar is included with this notice. If you do not have
enough money to pay a lawyer and are otherwise eligible, you may be able to
receive legal assistance for free. Information about whom to contact for free
legal assistance is included with this notice.
______________________________________________________________________________
[1959 c.625 §7; 1961 c.616 §4; 1965 c.457 §4; 1983 c.719 §5; 1985 c.817 §3;
2003 c.251 §4; 2009 c.510 §2; 2010 c.28 §§1,2; 2011 c.510 §1]
Note:
The amendments to 86.745 by section 6, chapter 510, Oregon Laws 2011, become
operative January 1, 2015. See section 9, chapter 510, Oregon Laws 2011. The
text that is operative on and after January 1, 2015, is set forth for the user’s
convenience.
86.745.
The notice of sale shall:
(1) List the names of the grantor, trustee
and beneficiary in the trust deed, and the mailing address of the trustee.
(2) Describe the property the trust deed
covers.
(3) Identify the book and page of the
mortgage records that record the trust deed.
(4) State the default for which the
foreclosure is made.
(5) State the sum owing on the obligation
that the trust deed secures.
(6) State that the property will be sold
to satisfy the obligation.
(7) Set forth the date, time and place of
the sale.
(8) State that the right exists under ORS
86.753 to have the proceeding dismissed and the trust deed reinstated by paying
the entire amount then due, together with costs, trustee’s fees and attorney
fees, and by curing any other default complained of in the notice of default,
at any time that is not later than five days before the date last set for the
sale.
(9) If the property includes one or more
dwelling units that are subject to ORS chapter 90, include a notice addressed
clearly to any individual who occupies the property and who is or might be a
residential tenant. The notice required under this subsection must:
(a) Include contact information for the
Oregon State Bar and a person or organization that provides legal help to
individuals at no charge to the individual;
(b) Include information concerning the
right the individual has to notice under ORS 86.755 (6)(c);
(c) Be set apart from other text in the
notice of sale; and
(d) Be in substantially the following
form:
______________________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS
The property in which you are living is in
foreclosure. A foreclosure sale is scheduled for ________ (date). The date of
this sale may be postponed. Unless the lender that is foreclosing on this
property is paid before the sale date, the foreclosure will go through and
someone new will own this property. After the sale, the new owner is required
to provide you with contact information and notice that the sale took place.
The following information applies to you
only if you are a bona fide tenant occupying and renting this property as a
residential dwelling under a legitimate rental agreement. The information does
not apply to you if you own this property or if you are not a bona fide
residential tenant.
If the foreclosure sale goes through, the
new owner will have the right to require you to move out. Before the new owner
can require you to move, the new owner must provide you with written notice
that specifies the date by which you must move out. If you do not leave before
the move-out date, the new owner can have the sheriff remove you from the
property after a court hearing. You will receive notice of the court hearing.
PROTECTION FROM EVICTION
IF YOU ARE A BONA FIDE TENANT OCCUPYING
AND RENTING THIS PROPERTY AS A RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO
CONTINUE LIVING IN THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
•
60 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN TERMINATION NOTICE, IF YOU HAVE A
FIXED TERM LEASE; OR
•
AT LEAST 30 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN TERMINATION NOTICE, IF
YOU HAVE A MONTH-TO-MONTH OR WEEK-TO-
WEEK
RENTAL AGREEMENT.
If the new owner wants to move in and use
this property as a primary residence, the new owner can give you written notice
and require you to move out after 30 days, even though you have a fixed term
lease with more than 30 days left.
You must be provided with at least 30 days’
written notice after the foreclosure sale before you can be required to move.
A bona fide tenant is a residential tenant
who is not the borrower (property owner) or a child, spouse or parent of the
borrower, and whose rental agreement:
•
Is the result of an arm’s-length transaction;
•
Requires the payment of rent that is not substantially less than fair market
rent for the property, unless the rent is reduced or subsidized due to a
federal, state or local subsidy; and
•
Was entered into prior to the date of the foreclosure sale.
ABOUT
YOUR TENANCY BETWEEN NOW AND THE FORECLOSURE SALE:
RENT
YOU SHOULD CONTINUE TO PAY RENT TO YOUR
LANDLORD UNTIL THE PROPERTY IS SOLD OR UNTIL A COURT TELLS YOU OTHERWISE. IF
YOU DO NOT PAY RENT, YOU CAN BE EVICTED. BE SURE TO KEEP PROOF OF ANY PAYMENTS
YOU MAKE.
SECURITY DEPOSIT
You may apply your security deposit and
any rent you paid in advance against the current rent you owe your landlord as
provided in ORS 90.367. To do this, you must notify your landlord in writing
that you want to subtract the amount of your security deposit or prepaid rent
from your rent payment. You may do this only for the rent you owe your current
landlord. If you do this, you must do so before the foreclosure sale. The
business or individual who buys this property at the foreclosure sale is not
responsible to you for any deposit or prepaid rent you paid to your landlord.
ABOUT
YOUR TENANCY AFTER THE FORECLOSURE SALE:
The new owner that buys this property at
the foreclosure sale may be willing to allow you to stay as a tenant instead of
requiring you to move out after 30 or 60 days. After the sale, you should
receive a written notice informing you that the sale took place and giving you
the new owner’s name and contact information. You should contact the new owner
if you would like to stay. If the new owner accepts rent from you, signs a new
residential rental agreement with you or does not notify you in writing within
30 days after the date of the foreclosure sale that you must move out, the new
owner becomes your new landlord and must maintain the property. Otherwise:
•
You do not owe rent;
•
The new owner is not your landlord and is not responsible for maintaining the
property on your behalf; and
•
You must move out by the date the new owner specifies in a notice to you.
The new owner may offer to pay your moving
expenses and any other costs or amounts you and the new owner agree on in
exchange for your agreement to leave the premises in less than 30 or 60 days.
You should speak with a lawyer to fully understand your rights before making
any decisions regarding your tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO
FORCE YOU TO LEAVE YOUR DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE
AND GOING TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS, YOU
SHOULD CONSULT A LAWYER. If you believe you need legal assistance, contact the
Oregon State Bar and ask for the lawyer referral service. Contact information
for the Oregon State Bar is included with this notice. If you do not have
enough money to pay a lawyer and are otherwise eligible, you may be able to
receive legal assistance for free. Information about whom to contact for free
legal assistance is included with this notice.
______________________________________________________________________________
86.750
Service and publication of notice; recording proof of compliance.
(1)(a) Except as provided in paragraph (b) of this subsection, the notice
prescribed in ORS 86.745 must be served upon an occupant of the property
described in the trust deed in the manner in which a summons is served pursuant
to ORCP 7 D(2) and 7 D(3) at least 120 days before the day the trustee conducts
the sale.
(b)(A) If service cannot be effected on an
occupant as provided in paragraph (a) of this subsection on the first attempt,
the person that attempts to effect service shall post a copy of the notice in a
conspicuous place on the property on the date of the first attempt. The person
that attempts to effect service shall make a second attempt to effect service
on a day that is at least two days after the first attempt.
(B) If service cannot be effected on an
occupant as provided in paragraph (a) of this subsection on the second attempt,
the person that attempts to effect service shall post a copy of the notice in a
conspicuous place on the property on the date of the second attempt. The person
that attempts to effect service shall make a third attempt to effect service on
a day that is at least two days after the second attempt.
(C) If service cannot be effected on an
occupant as provided in paragraph (a) of this subsection on the third attempt,
the person that attempts to effect service shall send a copy of the notice,
bearing the word “occupant” as the addressee, to the property address by first
class mail with postage prepaid.
(c) Service on an occupant is effected on
the earlier of the date that notice is served as provided in paragraph (a) of
this subsection or the first date on which notice is posted as described in
paragraph (b)(A) of this subsection.
(2)(a) Except as provided in paragraph (b)
of this subsection, a copy of the notice of sale must be published in a
newspaper of general circulation in each of the counties in which the property
is situated once a week for four successive weeks. The last publication must be
made more than 20 days prior to the date the trustee conducts the sale.
(b) The copy of the notice of sale
required to be published under paragraph (a) of this subsection does not need
to include the notice to tenants required under ORS 86.745 (9).
(3) At or before the time the trustee
conducts the sale, the trustee shall file for recording in the official record
of the county or counties in which the property described in the deed is
situated the following affidavits with respect to the notice of sale:
(a) An affidavit of mailing, if any;
(b) An affidavit of service, if any;
(c) An affidavit of service attempts and
posting, if any; and
(d) An affidavit of publication.
(4) At or before the time the trustee
conducts the sale, the trustee shall file for recording in the official record
of the county or counties in which the property described in the deed is
situated an affidavit of mailing with respect to the notice to the grantor
required under ORS 86.737. [1959 c.625 §8; 1961 c.616 §5; 1965 c.457 §5; 1979
c.879 §3; 1983 c.719 §6; 1985 c.817 §4; 2007 c.165 §1; 2009 c.229 §1; 2009
c.864 §§5,6; 2010 c.28 §§3,4; 2010 c.40 §§2,3\
86.753
Discontinuance of foreclosure proceedings after cure of default.
(1) Where a trustee has commenced foreclosure of a trust deed by advertisement
and sale, the grantor, the grantor’s successor in interest to all or any part
of the trust property, any beneficiary under a subordinate trust deed, or any
person having a subordinate lien or encumbrance of record on the property, may
cure the default or defaults at any time prior to five days before the date
last set for the sale. If the default consists of a failure to pay, when due,
sums secured by the trust deed, the default may be cured by paying the entire
amount due at the time of cure under the terms of the obligation, other than
such portion as would not then be due had no default occurred. Any other
default of the trust deed obligation that is capable of being cured may be
cured by tendering the performance required under the obligation or trust deed.
In any case, and in addition to paying the sums or tendering the performance
necessary to cure the default, the person effecting the cure shall pay to the
beneficiary all costs and expenses actually incurred in enforcing the
obligation and trust deed, together with trustee’s and attorney fees in the
amount of:
(a) A total of $1,000 for both trustee’s
fees and attorney fees, or the amount actually charged by the trustee and
attorney, whichever is less, if the trust deed is a residential trust deed; or
(b) Reasonable attorney fees and trustee’s
fees actually charged by the trustee and attorney if the trust deed is not a
residential trust deed. Any person entitled to cure the default may, either
before or after reinstatement, request any court of competent jurisdiction to
determine the reasonableness of the fee demanded or paid as a condition of
reinstatement. The court may award attorney fees to the prevailing party. An
action to determine reasonable attorney fees or trustee’s fees under this
section shall not forestall any sale or affect its validity.
(2) After cure of the default under
subsection (1) of this section, all proceedings under ORS 86.740 to 86.755
shall be dismissed by the trustee, and the obligation and trust deed shall be
reinstated and shall remain in force the same as if no acceleration had
occurred. [1983 c.719 §11; 1985 c.817 §5; 1989 c.190 §4; 1999 c.561 §1]
86.755
Sale of property; obtaining possession after sale; procedures; notices
required. (1)(a) A trustee shall hold a trustee’s
sale on the date and at the time and place designated in the notice of sale
given under ORS 86.740. The designated time of the trustee’s sale must be after
9 a.m. and before 4 p.m., based on the standard of time set forth in ORS
187.110, and the designated place of the trustee’s sale must be in the county
or one of the counties in which the property is situated. Except as provided in
paragraph (b) of this subsection, the trustee may sell the property in one
parcel or in separate parcels and shall sell the parcel or parcels at auction
to the highest bidder for cash. Any person, including the beneficiary under the
trust deed, but excluding the trustee, may bid at the trustee’s sale. An
attorney for the trustee, or an agent that the trustee or the attorney
designates, may conduct the sale and act in the sale as the trustee’s
auctioneer.
(b) If the trustee sells property upon
which a single residential unit that is subject to an affordable housing
covenant is situated, the eligible covenant holder may purchase the property
from the trustee at the trustee’s sale for cash or cash equivalent in an amount
that is the lesser of:
(A) The sum of the amounts payable under
ORS 86.765 (1) and (2); or
(B) The highest bid received for the
property other than a bid from the eligible covenant holder.
(c)(A) Except as provided in subparagraph
(B) of this paragraph, if an eligible covenant holder purchases the property in
accordance with paragraph (b) of this subsection, the sale forecloses and
terminates all other interests in the property as provided in ORS 86.770 (1).
(B) If an interest in the property exists
that is prior to the eligible covenant holder’s interest, other than the
interest set forth in the trust deed that was the subject of the foreclosure
proceeding under ORS 86.735, notwithstanding the provisions of ORS 86.770 (1)
the sale does not foreclose and terminate the prior interest and the eligible
covenant holder’s title to the property is subject to the prior interest.
(2) The trustee or the attorney for the
trustee, or an agent that the trustee or the attorney conducting the sale
designates, may postpone the sale for one or more periods that total not more
than 180 days from the original sale date, giving notice of each adjournment by
public proclamation made at the time and place set for sale. The trustee, the
attorney or an agent that the trustee or the attorney designates may make the
proclamation.
(3) The purchaser shall pay at the time of
sale the price bid or the price determined in accordance with subsection (1)(b)
of this section, and, within 10 days following payment, the trustee shall
execute and deliver the trustee’s deed to the purchaser.
(4) The trustee’s deed shall convey to the
purchaser the interest in the property that the grantor had, or had the power
to convey, at the time the grantor executed the trust deed, together with any
interest the grantor or the grantor’s successors in interest acquire after the
execution of the trust deed.
(5)(a) If property purchased at the
trustee’s sale includes one or more dwelling units that are subject to ORS
chapter 90, the purchaser must provide written notice of change in ownership to
the occupants of each unit within 30 days after the date of sale and before or
concurrently with service of a written termination notice authorized by
subsection (6)(c)(B) of this section.
(b) The notice required by this subsection
must:
(A) Explain that the dwelling unit has
been sold at a foreclosure sale and that the purchaser at that sale is the new
owner.
(B) Include the date on which the
foreclosure sale took place.
(C) Include the name, contact address and
contact telephone number of the purchaser or the purchaser’s representative.
(D) Provide information about the rights
of bona fide residential tenants as provided in subsections (6)(c) and (e) and
(9)(a) of this section.
(E) Include contact information for the
Oregon State Bar and a person or organization that provides legal help to
individuals at no charge to the individual.
(c) The notice must be served by one or
more of the following methods:
(A) Personal delivery to the tenant.
(B) First class mail to the tenant at the
dwelling unit.
(C) First class mail to the tenant at the
dwelling unit and attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the portion of the
premises in the possession of the tenant.
(D) If the names of the tenants are not
known to the purchaser, the notice may be addressed to “occupants.”
(d) A notice that contains the information
required under paragraph (b)(B) and (C) of this subsection meets the
requirements of paragraph (b) of this subsection if the notice is in
substantially the following form:
______________________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS OF
CHANGE IN OWNERSHIP
The property in which you are living has
gone through foreclosure and was sold to a new owner on ________ (date). The
contact information for the new owner or the owner’s representative is
______________ (name, address, telephone number).
IF YOU ARE A BONA FIDE TENANT RENTING THIS
PROPERTY AS A RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO CONTINUE LIVING IN
THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
•THE REMAINDER OF YOUR FIXED TERM LEASE,
IF YOU HAVE A FIXED TERM LEASE; OR
•AT LEAST 90 DAYS FROM THE DATE YOU ARE
GIVEN A WRITTEN TERMINATION NOTICE.
If the new owner wants to move in and use
this property as a primary residence, the new owner can give you written notice
and require you to move out after 90 days, even though you have a fixed term
lease with more than 90 days left.
You must be provided with at least 90 days’
written notice after the foreclosure sale before you can be required to move.
A bona fide tenant is a residential tenant
who is not the borrower (property owner), or a child, spouse or parent of the
borrower, and whose rental agreement:
•Is the result of an arm’s-length
transaction;
•Requires the payment of rent that is not
substantially less than fair market rent for the property, unless the rent is
reduced or subsidized due to a federal, state or local subsidy; and
•Was entered into prior to the date of the
foreclosure sale.
IMPORTANT:
YOU SHOULD CONTACT THE NEW OWNER OR THE
OWNER’S REPRESENTATIVE AT THE ADDRESS LISTED ON THIS NOTICE AS SOON AS POSSIBLE
TO LET THE NEW OWNER KNOW IF YOU ARE A BONA FIDE TENANT. YOU SHOULD PROVIDE
WRITTEN EVIDENCE OF THE EXISTENCE OF YOUR RENTAL AGREEMENT, ESPECIALLY IF YOU
HAVE A FIXED TERM RENTAL AGREEMENT OR LEASE WITH MORE THAN 90 DAYS LEFT.
Written evidence of your rental agreement can be a copy of your lease or rental
agreement, or other documentation of the existence of your rental agreement.
Keep your original documents and a record of any information you give to the
new owner.
YOUR TENANCY BETWEEN NOW AND THE
MOVE-OUT DATE:
The new owner may be willing to allow you
to stay as a tenant instead of requiring you to move out after 90 days or at
the end of your fixed term lease. You should contact the new owner if you would
like to stay. If the new owner accepts rent from you, signs a new residential
rental agreement with you or does not notify you in writing within 30 days
after the date of the foreclosure sale that you must move out, the new owner
becomes your new landlord and must maintain the property. Otherwise:
•You do not owe rent;
•The new owner is not your landlord and is
not responsible for maintaining the property; and
•You must move out by the date the new
owner specifies in a notice to you.
The new owner may offer to pay your moving
expenses and any other costs or amounts you and the new owner agree on in
exchange for your agreement to leave the premises in less than 90 days or
before your fixed term lease expires. You should speak with a lawyer to fully
understand your rights before making any decisions regarding your tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO
FORCE YOU TO LEAVE YOUR DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE
AND GOING TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS, YOU
SHOULD CONSULT A LAWYER. If you believe you need legal assistance, contact the
Oregon State Bar and ask for the lawyer referral service. Contact information
for the Oregon State Bar is included with this notice. If you do not have
enough money to pay a lawyer and are otherwise eligible, you may be able to
receive legal assistance for free. Information about whom to contact for free
legal assistance is included with this notice.
______________________________________________________________________________
(6)(a) Except as provided in paragraph (b)
or (c) of this subsection, the purchaser at the trustee’s sale is entitled to
possession of the property on the 10th day after the sale. A person that
remains in possession after the 10th day under any interest, except an interest
prior to the trust deed, or an interest the grantor or a successor of the
grantor created voluntarily, is a tenant at sufferance. The purchaser may
obtain possession of the property from a tenant at sufferance by following the
procedures set forth in ORS 105.105 to 105.168 or other applicable judicial
procedure.
(b) Except as provided in paragraph (c) of
this subsection, at any time after the trustee’s sale the purchaser may follow
the procedures set forth in ORS 105.105 to 105.168 or other applicable judicial
procedure to obtain possession of the property from a person that holds
possession under an interest that the grantor or a successor of the grantor
created voluntarily if, not earlier than 30 days before the date first set for
the sale, the person was served with not less than 30 days’ written notice of
the requirement to surrender or deliver possession of the property.
(c) If the property purchased at the
trustee’s sale includes a dwelling unit that is subject to ORS chapter 90 and
an individual occupies the unit under a bona fide tenancy, the purchaser may
obtain possession by following the procedures set forth in ORS 105.105 to
105.168 and by using the complaint form provided in ORS 105.124 or 105.126:
(A) Upon expiration of the fixed term of
the tenancy, if the bona fide tenancy is a fixed term tenancy as defined in ORS
90.100; or
(B) At least 90 days after service of a
written termination notice if the bona fide tenancy is:
(i) A fixed term tenancy and the purchaser
intends to occupy, as the purchaser’s primary residence, the dwelling unit that
is subject to the fixed term tenancy; or
(ii) A month-to-month tenancy or
week-to-week tenancy, as those terms are defined in ORS 90.100.
(d) If a purchaser gives a 90-day written
termination notice pursuant to paragraph (c) of this subsection, the purchaser
may include in the notice a request that a tenant with a fixed term tenancy
provide written evidence of the existence of the tenancy to the purchaser at an
address described in the notice. Written evidence includes a copy of the rental
agreement or another document that shows the existence of the fixed term
tenancy. Failure of the tenant to provide the requested written evidence before
the purchaser files an action for possession based on a 90-day notice:
(A) Does not prevent the tenant from
asserting the existence of the fixed term tenancy as a defense to the action.
(B) Prevents the tenant from recovering
prevailing party attorney fees or costs and disbursements pursuant to subsection
(11)(b) of this section. The 90-day notice must describe the provisions of this
paragraph.
(e) A purchaser may not commence a
proceeding under ORS 105.105 to 105.168 that is authorized under this
subsection before the later of:
(A) The 10th day after the trustee’s sale;
(B) The date specified in a written notice
of the requirement to surrender or deliver possession of the property if the
notice is required by and is given to the person in accordance with paragraph
(b) of this subsection;
(C) The date specified in a written notice
of the purchaser’s intent to terminate a tenancy if the notice is required by
and is given to the person in accordance with paragraph (c) of this subsection;
or
(D) The date on which the term of a fixed
term tenancy ends, if the property is a dwelling unit and the purchaser has not
terminated the tenancy in accordance with paragraph (c) of this subsection.
(f) A purchaser seeking to obtain
possession pursuant to ORS 105.105 to 105.168 must attach proof of service of a
written termination notice required by paragraph (c) of this subsection to the
pleadings.
(g) In an action to obtain possession,
violation of the procedures required by subsection (5) of this section or
paragraph (c) of this subsection is a defense for a bona fide tenant seeking to
retain possession.
(h) As used in this subsection, “bona fide
tenancy” means tenancy of a dwelling unit that is subject to ORS chapter 90
that results from an arm’s-length transaction that occurred before the date of
a foreclosure sale in which:
(A) The mortgagor or the child, spouse or
parent of the mortgagor under the contract is not the tenant; and
(B) The rent required is not substantially
less than fair market rent for the dwelling unit, unless the rent is reduced or
subsidized due to a federal, state or local subsidy.
(7) A purchaser shall serve a notice under
subsection (6) of this section by one or more of the following methods:
(a) Personal delivery to the tenant.
(b) First class mail to the tenant at the
dwelling unit.
(c) First class mail to the tenant at the
dwelling unit and attachment of a second notice copy. The second notice copy
must be attached in a secure manner to the main entrance to the portion of the
premises in the possession of the tenant.
(8) If the notice under subsection (6) of
this section is served by mail pursuant to subsection (7)(b) of this section,
the minimum period for compliance must be extended by three days and the notice
must include the extension in the period stated in the notice.
(9)(a) Notwithstanding the provisions of
subsection (6)(c) of this section and except as provided in paragraph (b) of
this subsection, the purchaser is not a landlord subject to the provisions of
ORS chapter 90 unless the purchaser:
(A) Accepts rent from the individual who
possesses the property under a tenancy described in subsection (6)(c) of this
section;
(B) Enters into a new rental agreement
with the individual who possesses the property under a tenancy described in
subsection (6)(c) of this section; or
(C) Fails to terminate the tenancy as
provided in subsection (6)(c) of this section within 30 days after the date of
the sale.
(b) The purchaser may act as a landlord
for purposes of terminating a tenancy in accordance with the provisions of ORS
90.396.
(c) The purchaser is subject to the
provisions of ORS 90.322, 90.375, 105.165, 659A.421 and 659A.425. The
application of ORS 90.375 to a purchaser that does not become a landlord does
not impose an affirmative duty to pay for or provide services. For the purpose
of damages pursuant to this paragraph, “rent” refers to the amount paid by the
tenant to the landlord for the right to occupy the unit before the foreclosure.
(10)(a) Except as provided in paragraph
(b) of this subsection, the purchaser is not liable to the individual who
possesses the property under a tenancy described in subsection (6)(c) of this
section for:
(A) Damage to the property or diminution
in rental value; or
(B) Returning a security deposit.
(b) A purchaser that is a landlord under
the provisions of subsection (9)(a) of this section is liable to the individual
who possesses the property under a tenancy described in subsection (6)(c) of
this section for:
(A) Damage to the property or diminution
in rental value that occurs after the date of the trustee’s sale; or
(B) Returning a security deposit the
individual pays after the date of the trustee’s sale.
(11)(a) Except as provided in paragraph
(b) of this subsection and notwithstanding an agreement to the contrary, in an
action or defense arising pursuant to subsection (6)(c), (d), (f) or (g), (7)
or (9)(c) of this section, reasonable attorney fees at trial and on appeal may
be awarded to the prevailing party together with costs and disbursements.
(b) If a tenant asserts a successful
defense to an action for possession pursuant to subsection (6)(c), (d), (f) or
(g) of this section, the tenant is not entitled to prevailing party fees,
attorney fees or costs and disbursements if the purchaser:
(A) Did not know, and did not have reasonable
cause to know, of the existence of a fixed term tenancy when commencing the
action for possession; and
(B) Promptly dismissed the action upon
becoming aware of the existence of a fixed term tenancy.
(c) As used in this subsection, “prevailing
party” means the party in whose favor final judgment is rendered.
(12)(a) Notwithstanding subsection (2) of
this section, except when a beneficiary has participated in obtaining a stay,
foreclosure proceedings that are stayed by order of the court, by proceedings
in bankruptcy or for any other lawful reason shall, after release from the
stay, continue as if uninterrupted, if within 30 days after release the trustee
sends amended notice of sale by registered or certified mail to the last-known
address of the persons listed in ORS 86.740 and 86.750 (1).
(b) In addition to the notice required
under paragraph (a) of this subsection, the trustee shall send amended notice
of sale:
(A) By registered or certified mail to:
(i) The address provided by each person
who was present at the time and place set for the sale that was stayed; and
(ii) The address provided by each member
of the Oregon State Bar who by registered or certified mail requests the
amended notice of sale and includes with the request the notice of default or
an identification number for the trustee’s sale that would assist the trustee
in identifying the property subject to the trustee’s sale and a self-addressed,
stamped envelope measuring at least 8.5 by 11 inches in size; or
(B) By posting a true copy or a link to a
true copy of the amended notice of sale on the trustee’s Internet website.
(13) The amended notice of sale must:
(a) Be given at least 20 days before the
amended date of sale;
(b) Set an amended date of sale that may
be the same as the original sale date, or date to which the sale was postponed,
provided the requirements of this subsection and ORS 86.740 and 86.750 are
satisfied;
(c) Specify the time and place for sale;
(d) Conform to the requirements of ORS
86.745; and
(e) State that the original sale
proceedings were stayed and the date the stay terminated.
(14) If the publication of the notice of
sale was not completed before the date the foreclosure proceedings were stayed
by order of the court, by proceedings in bankruptcy or for any other lawful
reason, after release from the stay, in addition to complying with the
provisions of subsections (12) and (13) of this section, the trustee shall
complete the publication by publishing an amended notice of sale that states
that the notice has been amended following release from the stay and that
contains the amended date of sale. The amended notice must be published in a
newspaper of general circulation in each of the counties in which the property
is situated once a week for four successive weeks, except that the required
number of publications must be reduced by the number of publications that were
completed before the effective date of the stay. The last publication must be
made more than 20 days before the date the trustee conducts the sale. [1959
c.625 §9; 1965 c.457 §6; 1983 c.719 §7; 1985 c.817 §6; 1989 c.190 §5; 1989
c.506 §1; 2009 c.883 §§1,1a; 2011 c.42 §10; 2011 c.510 §2; 2011 c.712 §2]
Note:
The amendments to 86.755 by section 7, chapter 510, Oregon Laws 2011, become
operative January 1, 2015. See section 9, chapter 510, Oregon Laws 2011. The
text that is operative on and after January 1, 2015, is set forth for the user’s
convenience.
86.755.
(1)(a) A trustee shall hold a trustee’s sale on the date and at the time and
place designated in the notice of sale given under ORS 86.740. The designated
time of the trustee’s sale must be after 9 a.m. and before 4 p.m., based on the
standard of time set forth in ORS 187.110, and the designated place of the
trustee’s sale must be in the county or one of the counties in which the
property is situated. Except as provided in paragraph (b) of this subsection,
the trustee may sell the property in one parcel or in separate parcels and
shall sell the parcel or parcels at auction to the highest bidder for cash. Any
person, including the beneficiary under the trust deed, but excluding the
trustee, may bid at the trustee’s sale. An attorney for the trustee, or an
agent that the trustee or the attorney designates, may conduct the sale and act
in the sale as the trustee’s auctioneer.
(b) If the trustee sells property upon
which a single residential unit that is subject to an affordable housing
covenant is situated, the eligible covenant holder may purchase the property
from the trustee at the trustee’s sale for cash or cash equivalent in an amount
that is the lesser of:
(A) The sum of the amounts payable under
ORS 86.765 (1) and (2); or
(B) The highest bid received for the
property other than a bid from the eligible covenant holder.
(c)(A) Except as provided in subparagraph
(B) of this paragraph, if an eligible covenant holder purchases the property in
accordance with paragraph (b) of this subsection, the sale forecloses and
terminates all other interests in the property as provided in ORS 86.770 (1).
(B) If an interest in the property exists
that is prior to the eligible covenant holder’s interest, other than the
interest set forth in the trust deed that was the subject of the foreclosure
proceeding under ORS 86.735, notwithstanding the provisions of ORS 86.770 (1)
the sale does not foreclose and terminate the prior interest and the eligible
covenant holder’s title to the property is subject to the prior interest.
(2) The trustee or the attorney for the
trustee, or an agent that the trustee or the attorney conducting the sale
designates, may postpone the sale for one or more periods that total not more
than 180 days from the original sale date, giving notice of each adjournment by
public proclamation made at the time and place set for sale. The trustee, the
attorney or an agent that the trustee or the attorney designates may make the
proclamation.
(3) The purchaser shall pay at the time of
sale the price bid or the price determined in accordance with subsection (1)(b)
of this section, and, within 10 days following payment, the trustee shall
execute and deliver the trustee’s deed to the purchaser.
(4) The trustee’s deed shall convey to the
purchaser the interest in the property that the grantor had, or had the power
to convey, at the time the grantor executed the trust deed, together with any
interest the grantor or the grantor’s successors in interest acquire after the
execution of the trust deed.
(5)(a) If property purchased at the
trustee’s sale includes one or more dwelling units that are subject to ORS
chapter 90, the purchaser must provide written notice of change in ownership to
the occupants of each unit within 30 days after the date of sale and before or
concurrently with service of a written termination notice authorized by
subsection (6)(c)(B) of this section.
(b) The notice required by this subsection
must:
(A) Explain that the dwelling unit has
been sold at a foreclosure sale and that the purchaser at that sale is the new
owner.
(B) Include the date on which the
foreclosure sale took place.
(C) Include the name, contact address and
contact telephone number of the purchaser or the purchaser’s representative.
(D) Provide information about the rights
of bona fide residential tenants as provided in subsections (6)(c) and (e) and
(9)(a) of this section.
(E) Include contact information for the
Oregon State Bar and a person or organization that provides legal help to
individuals at no charge to the individual.
(c) The notice must be served by one or
more of the following methods:
(A) Personal delivery to the tenant.
(B) First class mail to the tenant at the
dwelling unit.
(C) First class mail to the tenant at the
dwelling unit and attachment of a second notice copy. The second notice copy
must be attached in a secure manner to the main entrance to the portion of the
premises in the possession of the tenant.
(D) If the names of the tenants are not
known to the purchaser, the notice may be addressed to “occupants.”
(d) A notice that contains the information
required under paragraph (b)(B) and (C) of this subsection meets the
requirements of paragraph (b) of this subsection if the notice is in
substantially the following form:
______________________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS OF CHANGE
IN OWNERSHIP
The property in which you are living has
gone through foreclosure and was sold to a new owner on ________ (date). The
contact information for the new owner or the owner’s representative is
____________________ (name, address, telephone number).
IF YOU ARE A BONA FIDE TENANT RENTING THIS
PROPERTY AS A RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO CONTINUE LIVING IN
THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
•
60 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN TERMINATION NOTICE, IF YOU HAVE A
FIXED TERM LEASE; OR
•
AT LEAST 30 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN TERMINATION NOTICE, IF
YOU HAVE A MONTH-TO-MONTH OR WEEK-TO-
WEEK
RENTAL AGREEMENT.
If the new owner wants to move in and use
this property as a primary residence, the new owner can give you written notice
and require you to move out after 30 days, even though you have a fixed term
lease with more than 30 days left.
You must be provided with at least 30 days’
written notice after the foreclosure sale before you can be required to move.
A bona fide tenant is a residential tenant
who is not the borrower (property owner), or a child, spouse or parent of the
borrower, and whose rental agreement:
•
Is the result of an arm’s-length transaction;
•
Requires the payment of rent that is not substantially less than fair market
rent for the property, unless the rent is reduced or subsidized due to a
federal, state or local subsidy; and
•
Was entered into prior to the date of the foreclosure sale.
IMPORTANT:
YOU SHOULD CONTACT THE NEW OWNER OR THE
OWNER’S REPRESENTATIVE AT THE ADDRESS LISTED ON THIS NOTICE AS SOON AS POSSIBLE
TO LET THE NEW OWNER KNOW IF YOU ARE A BONA FIDE TENANT. YOU SHOULD PROVIDE
WRITTEN EVIDENCE OF THE EXISTENCE OF YOUR RENTAL AGREEMENT, ESPECIALLY IF YOU
HAVE A FIXED TERM RENTAL AGREEMENT OR LEASE WITH MORE THAN 30 DAYS LEFT.
Written evidence of your rental agreement can be a copy of your lease or rental
agreement, or other documentation of the existence of your rental agreement.
Keep your original documents and a record of any information you give to the
new owner.
YOUR TENANCY BETWEEN NOW AND THE
MOVE-OUT DATE:
The new owner may be willing to allow you
to stay as a tenant instead of requiring you to move out after 30 or 60 days.
You should contact the new owner if you would like to stay. If the new owner
accepts rent from you, signs a new residential rental agreement with you or
does not notify you in writing within 30 days after the date of the foreclosure
sale that you must move out, the new owner becomes your new landlord and must
maintain the property. Otherwise:
•
You do not owe rent;
•
The new owner is not your landlord and is not responsible for maintaining the
property; and
•
You must move out by the date the new owner specifies in a notice to you.
The new owner may offer to pay your moving
expenses and any other costs or amounts you and the new owner agree on in
exchange for your agreement to leave the premises in less than 30 or 60 days.
You should speak with a lawyer to fully understand your rights before making
any decisions regarding your tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO
FORCE YOU TO LEAVE YOUR DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE
AND GOING TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS, YOU
SHOULD CONSULT A LAWYER. If you believe you need legal assistance, contact the
Oregon State Bar and ask for the lawyer referral service. Contact information
for the Oregon State Bar is included with this notice. If you do not have
enough money to pay a lawyer and are otherwise eligible, you may be able to
receive legal assistance for free. Information about whom to contact for free
legal assistance is included with this notice.
______________________________________________________________________________
(6)(a) Except as provided in paragraph (b)
or (c) of this subsection, the purchaser at the trustee’s sale is entitled to
possession of the property on the 10th day after the sale. A person that
remains in possession after the 10th day under any interest, except an interest
prior to the trust deed, or an interest the grantor or a successor of the
grantor created voluntarily, is a tenant at sufferance. The purchaser may
obtain possession of the property from a tenant at sufferance by following the
procedures set forth in ORS 105.105 to 105.168 or other applicable judicial
procedure.
(b) Except as provided in paragraph (c) of
this subsection, at any time after the trustee’s sale the purchaser may follow
the procedures set forth in ORS 105.105 to 105.168 or other applicable judicial
procedure to obtain possession of the property from a person that holds
possession under an interest that the grantor or a successor of the grantor
created voluntarily if, not earlier than 30 days before the date first set for
the sale, the person was served with not less than 30 days’ written notice of
the requirement to surrender or deliver possession of the property.
(c) If the property purchased at the
trustee’s sale includes a dwelling unit that is subject to ORS chapter 90 and
an individual occupies the unit under a bona fide tenancy, the purchaser may
obtain possession by following the procedures set forth in ORS 105.105 to
105.168 and by using the complaint form provided in ORS 105.124 or 105.126:
(A) At least 60 days after service of a
written termination notice, if the bona fide tenancy is a fixed term tenancy as
defined in ORS 90.100; or
(B) At least 30 days after service of a
written termination notice if the bona fide tenancy is:
(i) A fixed term tenancy and the purchaser
intends to occupy, as the purchaser’s primary residence, the dwelling unit that
is subject to the fixed term tenancy; or
(ii) A month-to-month tenancy or
week-to-week tenancy, as those terms are defined in ORS 90.100.
(d) If a purchaser gives a 30-day written
termination notice pursuant to paragraph (c) of this subsection, the purchaser
may include in the notice a request that a tenant with a fixed term tenancy
provide written evidence of the existence of the tenancy to the purchaser at an
address described in the notice. Written evidence includes a copy of the rental
agreement or another document that shows the existence of the fixed term
tenancy. Failure of the tenant to provide the requested written evidence before
the purchaser files an action for possession based on a 30-day notice:
(A) Does not prevent the tenant from
asserting the existence of the fixed term tenancy as a defense to the action.
(B) Prevents the tenant from recovering
prevailing party attorney fees or costs and disbursements pursuant to subsection
(11)(b) of this section. The 30-day notice must describe the provisions of this
paragraph.
(e) A purchaser may not commence a
proceeding under ORS 105.105 to 105.168 that is authorized under this
subsection before the later of:
(A) The 10th day after the trustee’s sale;
(B) The date specified in a written notice
of the requirement to surrender or deliver possession of the property if the
notice is required by and is given to the person in accordance with paragraph
(b) of this subsection;
(C) The date specified in a written notice
of the purchaser’s intent to terminate a tenancy if the notice is required by
and is given to the person in accordance with paragraph (c) of this subsection;
or
(D) The date on which the term of a fixed
term tenancy ends, if the property is a dwelling unit and the purchaser has not
terminated the tenancy in accordance with paragraph (c) of this subsection.
(f) A purchaser seeking to obtain
possession pursuant to ORS 105.105 to 105.168 must attach proof of service of a
written termination notice required by paragraph (c) of this subsection to the
pleadings.
(g) In an action to obtain possession,
violation of the procedures required by subsection (5) of this section or
paragraph (c) of this subsection is a defense for a bona fide tenant seeking to
retain possession.
(h) As used in this subsection, “bona fide
tenancy” means tenancy of a dwelling unit that is subject to ORS chapter 90
that results from an arm’s-length transaction that occurred before the date of
a foreclosure sale in which:
(A) The mortgagor or the child, spouse or
parent of the mortgagor under the contract is not the tenant; and
(B) The rent required is not substantially
less than fair market rent for the dwelling unit, unless the rent is reduced or
subsidized due to a federal, state or local subsidy.
(7) A purchaser shall serve a notice under
subsection (6) of this section by one or more of the following methods:
(a) Personal delivery to the tenant.
(b) First class mail to the tenant at the
dwelling unit.
(c) First class mail to the tenant at the
dwelling unit and attachment of a second notice copy. The second notice copy
must be attached in a secure manner to the main entrance to the portion of the
premises in the possession of the tenant.
(8) If the notice under subsection (6) of
this section is served by mail pursuant to subsection (7)(b) of this section,
the minimum period for compliance must be extended by three days and the notice
must include the extension in the period stated in the notice.
(9)(a) Notwithstanding the provisions of
subsection (6)(c) of this section and except as provided in paragraph (b) of
this subsection, the purchaser is not a landlord subject to the provisions of
ORS chapter 90 unless the purchaser:
(A) Accepts rent from the individual who
possesses the property under a tenancy described in subsection (6)(c) of this
section;
(B) Enters into a new rental agreement
with the individual who possesses the property under a tenancy described in
subsection (6)(c) of this section; or
(C) Fails to terminate the tenancy as
provided in subsection (6)(c) of this section within 30 days after the date of
the sale.
(b) The purchaser may act as a landlord
for purposes of terminating a tenancy in accordance with the provisions of ORS
90.396.
(c) The purchaser is subject to the
provisions of ORS 90.322, 90.375, 105.165, 659A.421 and 659A.425. The
application of ORS 90.375 to a purchaser that does not become a landlord does
not impose an affirmative duty to pay for or provide services. For the purpose
of damages pursuant to this paragraph, “rent” refers to the amount paid by the
tenant to the landlord for the right to occupy the unit before the foreclosure.
(10)(a) Except as provided in paragraph
(b) of this subsection, the purchaser is not liable to the individual who
possesses the property under a tenancy described in subsection (6)(c) of this
section for:
(A) Damage to the property or diminution
in rental value; or
(B) Returning a security deposit.
(b) A purchaser that is a landlord under
the provisions of subsection (9)(a) of this section is liable to the individual
who possesses the property under a tenancy described in subsection (6)(c) of
this section for:
(A) Damage to the property or diminution
in rental value that occurs after the date of the trustee’s sale; or
(B) Returning a security deposit the
individual pays after the date of the trustee’s sale.
(11)(a) Except as provided in paragraph
(b) of this subsection and notwithstanding an agreement to the contrary, in an
action or defense arising pursuant to subsection (6)(c), (d), (f) or (g), (7)
or (9)(c) of this section, reasonable attorney fees at trial and on appeal may
be awarded to the prevailing party together with costs and disbursements.
(b) If a tenant asserts a successful
defense to an action for possession pursuant to subsection (6)(c), (d), (f) or
(g) of this section, the tenant is not entitled to prevailing party fees,
attorney fees or costs and disbursements if the purchaser:
(A) Did not know, and did not have reasonable
cause to know, of the existence of a fixed term tenancy when commencing the
action for possession; and
(B) Promptly dismissed the action upon
becoming aware of the existence of a fixed term tenancy.
(c) As used in this subsection, “prevailing
party” means the party in whose favor final judgment is rendered.
(12)(a) Notwithstanding subsection (2) of
this section, except when a beneficiary has participated in obtaining a stay,
foreclosure proceedings that are stayed by order of the court, by proceedings
in bankruptcy or for any other lawful reason shall, after release from the
stay, continue as if uninterrupted, if within 30 days after release the trustee
sends amended notice of sale by registered or certified mail to the last-known
address of the persons listed in ORS 86.740 and 86.750 (1).
(b) In addition to the notice required
under paragraph (a) of this subsection, the trustee shall send amended notice
of sale:
(A) By registered or certified mail to:
(i) The address provided by each person
who was present at the time and place set for the sale that was stayed; and
(ii) The address provided by each member
of the Oregon State Bar who by registered or certified mail requests the
amended notice of sale and includes with the request the notice of default or
an identification number for the trustee’s sale that would assist the trustee
in identifying the property subject to the trustee’s sale and a self-addressed,
stamped envelope measuring at least 8.5 by 11 inches in size; or
(B) By posting a true copy or a link to a
true copy of the amended notice of sale on the trustee’s Internet website.
(13) The amended notice of sale must:
(a) Be given at least 20 days before the
amended date of sale;
(b) Set an amended date of sale that may
be the same as the original sale date, or date to which the sale was postponed,
provided the requirements of this subsection and ORS 86.740 and 86.750 are
satisfied;
(c) Specify the time and place for sale;
(d) Conform to the requirements of ORS
86.745; and
(e) State that the original sale
proceedings were stayed and the date the stay terminated.
(14) If the publication of the notice of
sale was not completed before the date the foreclosure proceedings were stayed
by order of the court, by proceedings in bankruptcy or for any other lawful
reason, after release from the stay, in addition to complying with the
provisions of subsections (12) and (13) of this section, the trustee shall
complete the publication by publishing an amended notice of sale that states
that the notice has been amended following release from the stay and that
contains the amended date of sale. The amended notice must be published in a
newspaper of general circulation in each of the counties in which the property
is situated once a week for four successive weeks, except that the required
number of publications must be reduced by the number of publications that were
completed before the effective date of the stay. The last publication must be
made more than 20 days before the date the trustee conducts the sale.
86.757
Request for information from trustee. (1) Not later
than 15 days before the date of a sale of property set forth in the notice of
sale under ORS 86.745, the grantor, an occupant, a holder of a junior lien or
any other person interested in bidding at the sale may send a written request
to the trustee requesting that the trustee provide a written statement of
information as described in ORS 86.759.
(2) The written request under subsection
(1) of this section shall be sent to the trustee at the address given in the
notice of sale by:
(a) Certified mail, return receipt
requested; or
(b) Personal delivery.
(3) The written request under subsection
(1) of this section shall include a mailing address, a facsimile number or an
electronic mail address to which the trustee shall send the written statement
of information.
(4) The trustee is not required to respond
to a written request that does not include an address, facsimile number or
electronic mail address described in subsection (3) of this section.
(5) Upon receiving a written request under
subsection (1) of this section, the trustee shall send the written statement of
information to the address, facsimile number or electronic mail address
provided in the written request at least seven days prior to the date of the
sale. If the person requesting the written statement of information provided a
mailing address, the trustee shall send the written statement of information by
certified mail, return receipt requested and by first class mail. [2003 c.251 §2]
86.759
Information provided by trustee. (1) The
written statement of information provided by a trustee under ORS 86.757 shall
include:
(a) A statement of the exact amount
required, as of a specified date, to cure the default or satisfy the obligation,
including the costs of foreclosure, trustee fees, attorney fees and per diem
interest; and
(b) A description of any other performance
necessary to cure the default or satisfy the obligation.
(2) If the amount required to cure the
default or satisfy the obligation is not calculable to an exact amount, the
trustee may estimate the maximum amount required to cure the default or satisfy
the obligation.
(3) If the trustee does not provide the
written statement of information within the time specified in ORS 86.757, the
trustee may postpone the sale of the property to provide the person requesting
the written statement of information at least seven days between receipt of the
statement and the date of the sale.
(4) A person requesting a written statement
of information under ORS 86.757 has the rights of an omitted person under ORS
86.742 if:
(a) The person requesting the statement
proves that the person sent a written request under ORS 86.757 at least 15 days
before the date of sale; and
(b) The trustee cannot prove that the
trustee sent the written statement of information at least seven days before
the date of the sale.
(5) The provisions of this section and ORS
86.757 do not affect the duty of beneficiaries to provide information to
grantors. [2003 c.251 §3]
86.760
[1959 c.625 §10; 1961 c.616 §6; 1965 c.457 §7; 1979 c.879 §4; repealed by 1983
c.719 §13]
86.765
Disposition of proceeds of sale. The trustee
shall apply the proceeds of the trustee’s sale as follows:
(1) To the expenses of the sale, including
the compensation of the trustee, and a reasonable charge by the attorney.
(2) To the obligation secured by the trust
deed.
(3) To all persons having recorded liens
subsequent to the interest of the trustee in the trust deed as their interests may
appear in the order of their priority.
(4) The surplus, if any, to the grantor of
the trust deed or to the successor in interest of the grantor entitled to such
surplus. [1959 c.625 §11; 1965 c.457 §8]
86.770
Effect of sale; actions for deficiency; restrictions.
(1) If, under ORS 86.705 to 86.795, a trustee sells property covered by a trust
deed, the trustee’s sale forecloses and terminates the interest in the property
that belongs to a person to which notice of the sale was given under ORS 86.740
and 86.750 or to a person that claims an interest by, through or under the
person to which notice was given. A person whose interest the trustee’s sale
foreclosed and terminated may not redeem the property from the purchaser at the
trustee’s sale. A failure to give notice to a person entitled to notice does
not affect the validity of the sale as to persons that were notified.
(2) Except in accordance with subsection
(4) of this section, after a trustee’s sale under ORS 86.705 to 86.795, or
after a judicial foreclosure of a residential trust deed, an action for a
deficiency may not be brought or a judgment entered against the grantor, the
grantor’s successor in interest or another person obligated on:
(a) The note, bond or other obligation
secured by the trust deed for the property that was subject to the trustee’s
sale or the judicial foreclosure; or
(b) Any other note, bond or other
obligation secured by a residential trust deed for, or mortgage on, the
property that was subject to the trustee’s sale or the judicial foreclosure
when the debt, of which the note, bond or other obligation is evidence:
(A) Was created on the same day as, and
used as part of the same purchase or repurchase transaction as, the note, bond
or other obligation secured by the foreclosed residential trust deed; and
(B) Is owed to or was originated by the
beneficiary or an affiliate of the beneficiary in the residential trust deed
that was subject to the trustee’s sale or the foreclosure.
(3) Notwithstanding ORS 88.070, in a
judicial foreclosure of a trust deed that is not a residential trust deed the
judgment must provide that if the sale proceeds are insufficient to satisfy the
judgment, execution may issue for the amount by which the unpaid balance of the
obligation secured by the trust deed exceeds the net sale proceeds payable to
the beneficiary.
(4) This section does not preclude:
(a) An action that forecloses, judicially
or nonjudicially:
(A) Other property covered by the trust
deed that is the subject of the foreclosure; or
(B) Another trust deed, mortgage, security
agreement, consensual or nonconsensual security interest or lien that covers
other real or personal property that is also used as security for the note,
bond or other obligation that is secured by the trust deed for the property
that was sold.
(b) An action against a guarantor for a
deficiency that remains after a judicial foreclosure.
(5) A guarantor of an obligation secured
by a residential trust deed may not recover a deficiency from the grantor or a
successor in interest of the grantor. [1959 c.625 §§12,13; 1965 c.457 §9; 1981
c.811 §1; 1983 c.719 §8; 1985 c.817 §7; 1989 c.190 §6; 1997 c.786 §1; 2007
c.166 §16; 2009 c.883 §2; 2010 c.48 §1]
86.775
Contents of trustee’s deed to purchaser. The trustee’s
deed to the purchaser at the trustee’s sale shall contain, in addition to a
description of the property conveyed, a recital of the facts concerning the
default, the notice given, the conduct of the sale and the receipt of the
purchase money from the purchaser. [1959 c.625 §14]
86.780
Recitals in trustee’s deed and certain affidavits as prima facie or conclusive
evidence. When the trustee’s deed is recorded in
the deed records of the county or counties where the property described in the
deed is situated, the recitals contained in the deed and in the affidavits
required under ORS 86.750 (3) and (4) shall be prima facie evidence in any
court of the truth of the matters set forth therein, but the recitals shall be
conclusive in favor of a purchaser for value in good faith relying upon them. [1959
c.625 §15; 1983 c.719 §12; 1985 c.565 §8; 2009 c.229 §2]
86.785
Requests for copies of notice of default or notice of sale.
At any time subsequent to the recordation of a trust deed and prior to a
recording of notice of default under the deed, any person desiring a copy of
any notice of default or any notice of sale under a trust deed as provided in
ORS 86.740 (1) may cause to be filed for record in the county clerk’s office of
the county or counties in which any part or parcel of the real property is
situated, a duly acknowledged request for a copy of any notice of sale or
default where service is made upon the trustee. The request shall contain the
name and address of the person requesting copies of the notice or notices and
shall identify the trust deed by stating the names of the parties to the deed,
the date of recordation of the deed and the book and page where the deed is
recorded. The county clerk shall immediately make a cross-reference of the
request to the trust deed, either on the margin of the page where the trust
deed is recorded or in some other suitable place. No request, statement or
notation placed on the record pursuant to this section shall affect title to
the property or be deemed notice to any person that any person so recording the
request has any right, title, interest in, lien or charge upon the property
referred to in the trust deed. [1959 c.625 §16]
86.790
Qualifications of trustee; appointment of successor trustee; duty of trustee.
(1) The trustee of a trust deed under ORS 86.705 to 86.795 shall not be
required to comply with the provisions of ORS chapters 707 and 709 and shall
be:
(a) Any attorney who is an active member
of the Oregon State Bar;
(b) A financial institution or trust
company, as defined in ORS 706.008, that is authorized to do business under the
laws of Oregon or the United States;
(c) A title insurance company authorized
to insure title to real property in this state, its subsidiaries, affiliates,
insurance producers or branches;
(d) The United States or any agency
thereof; or
(e) Escrow agents licensed under ORS
696.505 to 696.590.
(2) An attorney who is a trustee under
subsection (1)(a) of this section may represent the beneficiary in addition to
performing the duties of trustee.
(3) At any time after the trust deed is
executed, the beneficiary may appoint in writing another qualified trustee. If
the appointment of the successor trustee is recorded in the mortgage records of
the county or counties in which the trust deed is recorded, the successor
trustee shall be vested with all the powers of the original trustee.
(4) A trustee or successor trustee is a
necessary and proper party to any proceeding to determine the validity of or
enjoin any private or judicial proceeding to foreclose a trust deed, but a
trustee or successor trustee is neither a necessary nor a proper party to any
proceeding to determine title to the property subject to the trust deed, or to
any proceeding to impose, enforce or foreclose any other lien on the subject
property.
(5) Nothing in ORS 86.705 to 86.795
imposes a duty on the trustee or successor trustee to notify any person of any
proceeding with respect to such person, except a proceeding initiated by the
trustee or successor trustee.
(6) A trustee or the attorney for the
trustee or any agent designated by the trustee or the attorney may announce and
accept a bid from the beneficiary whether or not the beneficiary is present at
the sale.
(7) The trustee or successor trustee shall
have no fiduciary duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the trust deed. The trustee or
successor trustee shall not be relieved of the duty to reconvey the property
subject to the trust deed to the grantor upon request for reconveyance by the
beneficiary. [1959 c.625 §3; 1967 c.359 §680; 1975 c.618 §2a; 1979 c.879 §5;
1981 c.192 §1; 1983 c.719 §9; 1989 c.190 §7; 1997 c.70 §1; 1997 c.631 §388;
2003 c.364 §50]
86.795
Compensation of trustee. The charge of a trustee for the
performance of powers and duties of foreclosure by advertisement and sale
imposed under ORS 86.705 to 86.795 shall not exceed 50 percent of the
compensation allowable to an executor or administrator under ORS 116.173 or a
minimum charge of $100. Such compensation shall be based upon the amount due on
the obligation, both principal and interest, at the time of the trustee’s sale.
[1959 c.625 §19; 1961 c.616 §7; 1965 c.457 §10]
PENALTIES
86.990
Penalties. Violation of ORS 86.040 is a Class B misdemeanor.
[Amended by 1961 c.726 §410; 2011 c.597 §154]
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